PROFESSOR TURANO

T&E
SPRING 2019

INTRODUCTION

A. Donative Freedom - Strong cultural tradition in Anglo-American law – what T intended.

a. You generally can do what you want with your will, with some limitations:
i. CANNOT make gifts of your property w/o mental capacity
ii. If married, CANNOT disinherit the spouse w/o their consent
iii. Theoretically, CANNOT give away your estate without taxes to pay
iv. CANNOT have unlimited control over what you do with your $$ (Rule Against
Perpetuities)
B. Policy Behind Estate Law
a. Freedom of Testation – idea that you should do what you want to your property when you’re
alive/die
i. Limitations: lack mental capacity, cannot disinherit spouse, taxes, Rules Against
Perpetuities, if against public policy [i.e. discrimination]
b. A need for Certainty – reduce litigation by creating set of default rules
c. Reducing Possibility of Fraud – fair amount of formality to create a valid will with limitations:
lack mental
C. Probate v. Non-Probate
a. Probate – estate/property that passes under will.
i. EPTL § 1-2.6(b): the aggregate of property which a person owns→but an estate can be
probate property or non-probate property.
ii. Serves 3 functions:
i. Making property owned at death marketable again
ii. Paying off decedent’s debts
iii. Implementing decedent’s donative intent (distribution)
b. Non-Probate – does NOT pass under a will. Does not require any court processes. The owner of
property merely designates one or more beneficiaries to receive the property (proceeds are paid
directly from insurance company to beneficiary)
i. Four main will substitutes constitute the core of nonprobate system: life insurance,
pension accounts, joint accounts, revocable trusts.
ii. Examples:
 Life insurance (must pass by contractual terms, to beneficiary. does not enter the
realm of t&e b/c of the contract between insurance co. and decedent.)
 Joint bank or stock accounts; joint tenancy in property (if one person dies, the other
person automatically gets the property)
 ex: joint checking account - if you are married and own a home it is a called a
tenancy-by-the-entirety & if you are not married it is called joint tenancy w/
right of survivorship.
 Totten Trustbank account not a will [poor man’s will, no formalities—man retains
lifetime domination with power to revoke]
 Retirement benefits, pensions (pass by contract to the named beneficiary.)
 Contractual [Pension Accounts] life insurance, pension, IRA, annuities – named
beneficiary gets it
 Causa mortis gifts  gifts given right before you die
 Lifetime/Revocable Trust money placed in a trust & beneficiary gets all income,
can revoke, when beneficiary dies income is paid to remainder [no court approval
required]
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D. Definitions
1. Will [EPTL §1-2.19] – oral declaration/written instrument, effective upon death whereby person
disposes of property or directs how it shall be disposed of. Can exercise a power, appoint
fiduciary, trustee or administrator (includes codicil) – just pass the property that has giver’s voew
i. §1-2.1 Codicil: supplement to will either adding, taking from, altering provisions or
confirming but not revoking. Codicil re-dates will.
ii. Must be made as prescribed by § 3-2.1 or § 3-2.2…
iii. Meant to take effect upon death…(death so you can revoke during lifetime)
iv. Freely revocable during lifetime
v. A will can:
a. Dispose of property or direct how it should not be disposed of (i.e. I do not
want my son to get X – disinherit a person)
b. Dispose of your Body or any part thereof (do that on driver's license)
c. Give Power of Appointment / Attorney
d. Appoint a fiduciary: executor, guardian, trustee
e. Or make any other provision
2. Fiduciary - § 1-2.7 A fiduciary is a person who meets the description, in this part, of a “personal
representative” or who is designed by the creator or by the court to act as an assignee for the
benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of
a power during minority.
a. the age of majority in NY is 18
i. thus infant or minor = a person under age 18
ii. but if a parent refuses to support a child under age 21  the parent is disqualified
from sharing in the child’s intestate estate
iii. whether a person has reached the age of majority is determined by the law of his
domicile.
3. Intestate: person dies without will (intestate decedent)
4. Testate: person who died with a valid will
5. Personal Representative or Fiduciary [§1-2.13]: designed by creator or court to act for benefit
of others. Executor  with will; Administrator  without will [intestate]; both are fiduciary
a. Does not include various lifetime offices:
i. Trustee
ii. Guardian
iii. Assignee for the benefit of creditors
iv. Custodians
6. Property [§1-2.15]: includes both real and personal property
a. IP is personal property
b. Only husband and wife can own real property in the entirety
7. Disposition [§1-2.4]: transfer of property by person during lifetime or by will-- voluntary transfer
of property within lifetime, e.g. gift, put money in a trust, give by will, etc.
8. Testamentary Beneficiary [§1-2.18]: person who receives disposition of property under a will
vi. Bequeath/Bequest – personal property
vii. Legacy/Legatee = receives personal property (money/personal)  Bequest
viii. Devisee = receives real property  Devise
9. Distributee [§1-2.5]: person entitled to take/share in property under intestacy [takes
distribution]
10. Issue [§1-2.10]: Unless a contrary intention is indicated, the descendants in any degree from a
common ancestor (children, grandchildren, adopted children, etc.)
i. Creator of a will or trust can degine what he/she means by “issue”
ii. The terms “issue” and “descendants”, in subparagraph (1), include adopted children, non-
marital children, and posthumous children.
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 11. Per Capita [§ 1-2.11] → A disposition or distribution of property is per capita when it is made to
persons, each of whom is to take in his own right an equal portion of such property. (even of
different degree)
a. Per capital by each generation = by representation

DISTRIBUTION PER STIRPES & BY REPRESENTATION

A. Per Stirpes (before 1992) (modified per stirpes)
a. Per Stirpes §1-2.14 → A per stirpes disposition or distribution of property is made to persons who take
as issue of a deceased ancestor in the following manner:
i. The property so passing is divided into as many equal shares as there are
a. surviving issue in the generation nearest to the deceased ancestor which contains one or
more surviving issue, and
b. deceased issue in the same generation who left surviving issue, if any. Each surviving
member in such nearest generation is allocated one share. The share of a deceased
issue in the nearest generation who left surviving issue shall be distributed in the same
manner to such issue.
ii. To have per stirpes, will must state this!
iii. Applies to wills AND intestacy.
iv. Who Gets It: The property is divided into equal shares for…
1) each living member of the nearest generation with at least one living member PLUS
2) each dead member of that generation with at least one descendant
v. How to divide?
a. (1). Go to generation closest to decedent that has one or more surviving issue & count
up those people that did survive
b. (2). THEN divide the estate into equal shares by sum of all the surviving issue in that
generation AND all deceased issue in that generation (if they left surviving issue)
c. (3). Each surviving beneficiary takes 1 share, and the predeceased beneficiary’s share is
paid to his surviving issue (divide the parents respective share among his or her issue)
i. This last step is the point at which per stirpes distribution differs from by
representation
ii. The share of the deceased person is kept in his line, instead of combining all of
the shares & giving them out anew
B. Representation (per capital by each generation) – after Aug 31, 1992
a. By Representation §1-2.16 → a disposition or distribution of property made in the following manner to
persons who take as issue of a deceased ancestor:
b. The property so passing is divided into as many equal shares as there are
i. surviving issue in the generation nearest to the deceased ancestor which contains one or more
surviving issue and
ii. deceased issue in the same generation who left surviving issue, if any. Each surviving member
in such nearest generation is allocated one share. The remaining shares, if any are combined
and then divided in the same manner among surviving issue of the deceased issue as if the
surviving issue who are allocated a share had predeceased the decedent, without issue
c. The default for wills AFTER 1992. If you’re silent in your will in NY (“to issue”): then the default is
**By Representation** EPTL §2-1.2 governs
d. Applies to wills (after 1992 and refer to 1-2.16) AND intestacy (expressly presented in the default
rule).
e. Who Gets It: The property is divided into equal shares for…
i. each living member of the nearest generation with at least one living member PLUS
ii. each dead member of that generation with at least one descendant
f. How It’s divided:
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 i. Each living member of the nearest generation gets one share.
ii. For each dead member, the remaining shares are combined and allocated as if the living
members of the nearest generation had predeceased without descendants.

C. Per Stirpes & By Representation Examples:

a. Look to Document titled “per stirpes and by representation examples”
b. For both: When an entire generation dies out, we always start fresh at the next generation where there
are survivors
c. Look below:
Great-grandfather

X Y Z

1 2 3 4 5

 Per Stirpes: X gets 1/3 of estate; 1, 2, and 3 split Y’s share only: each get 1/9;
4 and 5 split Z’s share only: each get 1/6
 By Representation: X gets 1/3 of estate; combined other 2/3 & start over with
division: 1,2,3,4,5 share the other 2/3 equally = 2/15th each
D. Per capita (EPTL §1-2.11): Everyone takes equally, but issue take nothing even if they are dead  this is
not used often.
Example of Application of per stirp, by representation, and per capital
(1)The decedent (D) gave his entire estate to his Because it happened yesterday which is after the 1992
“issue.” He died yesterday survived only by three  by representation under EPTL 2-1.2 and those
children. three children each takes equal shares
(2)The decedent (D) gave his entire estate to his By representation: each of his sons gets one-third. His
“issue.” He died yesterday survived only by two sons three granddaughters share the last one-third (1/9)
and three grandchildren from his predeceased
daughter.
(3)The decedent (D) gave his entire estate to his By representation: the surviving son gets 1/3, the
“issue.” He died yesterday survived only by one son, other five surviving grandchildren equally share 2/3
two grandchildren from his predeceased son, and  each 2/15.
three grandchildren from his predeceased daughter. If the estate worth 300k, then the surviving son gets
100k, each grandchild got 40k (200k/5)
(4) The decedent (D) gave his entire estate to his Per stirps (freedom of testation): the surviving son
“issue per stirpes.” He died yesterday survived only gets 1/3, the two grandchildren from decedent’s
by one son, two grandchildren from his predeceased predeceased son equally share 1/3 (1/6); and three
son, and three grandchildren from his predeceased grandchildren from his predeceased daughter equally
daughter share 1/3 (1/9)
If the state worth 300k, the surviving son gets 100k,
predeceased son’s two sons each gets 50k, and three
daughters of predeceased daughter each gets 100/3k
(5) The decedent (D) died intestate yesterday. He EPTL 4-1.1(a)(5): if survived only by issue of parents
was survived only by one sister, three nieces from his  whole to issue of parents, by representation. Here
predeceased sister, and four nephews from his issues includes D’s sister and nieces and nephews:
predeceased brother
His surviving sister takes one-third. The other two-
thirds are combined and paid to the nieces and
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(6) The decedent (D) died intestate in 1991. He was
survived only by one sister, three nieces from his
predeceased sister, and four nephews from his
predeceased brother
nephews equally.
If the estate values $600k. Then the surving sister gets
200k, the seven nieces and nephews would share the
other $400k equally.
Because it incurred before 1992  the default rule
under EPTL 2-1.2 is per capital among same
generation and per stirps among issues of different
generation 
So D’s sister would have gotten one-third; the three
nieces of his predeceased sister would have shared
one-third (one-ninth each); and four nephews from
his predeceased brother would have shared one-third
(one-twelfth each)
If the estate were $600,000, D’s sister would have
gotten $200,000; the three nieces of his predeceased
sister would have shared $200,000 ($66,667 each),
and four nephews from his predeceased brother
would have shared $200,000 ($50,000 each).
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 INTESTACY
A. Intestacy Intro Applies when person dies without a will [Probate Assets ONLY]
 The rules of intestacy are default rules, not mandatory rules—they apply only where the decedent has
not effectively provided otherwise, as by writing a valid will.
 Decedents are also called a distributor
i. Reasons why you need to know who the distributees are (governed by §4-1.1)
1) Inheritance rights are determined by article 4-1.1
2) Wrongful death suits (the estate brings it and it can only be brought where both, 1. by
a distributee, who 2. would have been supported by the deceased (Kaiser case spells
out the formula to calculate amount owed to distributee).
3) In a probate proceeding, you need to serve process on the distributes.
 Child in gestation at time of decedent’s death is valid distributee if born alive
 Step-parents/step-children are not considered distributees unless contrary intention is indicated
 Person must survive the decedent in order to take intestate or under a willSurvival, if only by
an instant, is sufficient for intestate succession
 Only people that survive the decendent are entitled to succeed to the decendents property by
testate or intestate succession
 However, if all die in a similar situation (like car accident) and they can’t tell which one died
first etc., then USDA states they will dispose of the property as if they had survived.
 Policy Behind Intestacy
o Designed to effect orderly distribution of property
o Distribute property that approximates what decedent would’ve done if he made a will
o Spouses/children enjoy favored position
o Serves society by protecting/promoting family, encourage accumulation of property
B. Intestacy Statute [§4-1.1]
i. Applies to property not disposed of in decedent’s will (property decedent owned in her name)
a. Note: §4-1.1 applies only to probate property (assets). Property that decedent owned in his own
name
i. Non-probate property: Insurance, pension fund, joint bank accounts, joint tenancy
w/ rights of survivorship
ii. Only probate property passes through intestate
ii. When Rule §4-1.1 Is Applied:
1) The decedent left NO will…in which case we say that the decedent has died intestate!
2) Partially intestate (i.e. when you have a will that only distributes part or none of estate, or leave
to a friend and they pre-decease you, etc.)
iii. Distribution of the Estate
a. Creditors come first! (take off top for debts, administration & funeral expenses)
b. Taxes are disregarded – however, distributees have to pay their own portion of estate tax
(proportionally) but no taxes for spouses & charities
 Estate taxes are not paid until after distribution, because deductions are different
depending on the relationship (e.g., 100% marital deduction).
 Spouse makes out, others share the tax burden
iv. If decedent is survived by:
1. Spouse & Issue (kids/grandkids) $50,000 + ½ of rest to spouse & balance to issue by
representation (a-1)
a. Example: if husband dies, and wife survived and they have 3 kids, wife will
automatically $50,000 plus ½ and the kids will get the balance, divided by 3. If
all kids are dead, all grandkids will get it. If two kids are alive, but third kid is
dead, divide the remainder by 3, give 1/3 and 1/3 to the two alive kids, and then
for the dead kid, give the last 1/3 to their surviving grandkid 1/ (or divide it if
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 they have multiple grandkids)  LOOK TO SLIDE PROBLEMS (intestacy
problems)
2. Only Spouse (No Issue)  all to spouse
i. Same sex marriage: A marriage that is otherwise valid shall be valid regardless
of whether the parties to the marriage are of the same or different sex
3. Only Issue (No Spouse)  all to issue by representation
4. Only Parents [1 or both] (No Spouse or Issue)  all to parents (a)(4)
5. Only Issue of Parents (their siblings, nieces, nephews) and NO spouse, issue, or parent (a)
(5) all to issue of parents by representation
6. (a)(6). No spouse, No issue, No parents, No issue of parents (your siblings, kids of
siblings), but one or more grandparents OR issue of grandparents (your aunts & uncles
& cousins)
a. (1) If survived by maternal & paternal GRANDPARENTS ½ goes to the
surviving paternal grandparents or their issue if g-parents not alive & ½ to the
surviving maternal grandparents or their issue or their issue if g-parents not alive
b. (2) If only 1 grandparent alive  that surviving grandparent will get ½ & the
issue of the g-parent (decedent’s aunts, uncles, first cousins) of the other side
will get the other ½ by representation
c. (3) If no grandparents or their issue survive on one side  all to other
grandparents (or issue if g-parent dead) (on other side)
d. (4) (a)(6) cuts off “issue” to only grandchildren of the grandparents, which
would be the decedent’s first cousins!!! (last para of (a)(6))
7. (7). No spouse, No issue, No parents, No issue of parents (siblings), No grandparents,
No children of grandparents or grandchildren of grandparents, but great-
grandchildren of grandparents 
a. If you had a first cousin (a grandchild of your grandparent) you would be in
(a)(6)
b. This provision is the ONLY time that first cousins once removed can take
under intestacy is when the decedent has no surviving children or grandchildren
of his grandparents, and obviously no spouse, issue, parents, brothers, sisters,
nieces, nephews, or grandparents
i. PER CAPITA AT THIS LEVEL!!
ii. If survived by great grandchild of grandparents of
both sidesone half to each side, per capita.
iii. If survived by only one side  the whole to that
side and per capita.
8. Cut-off: No relative more remote than first cousins once removed can inherit.
9. No One to inherit past  estate escheats (goes) to estate
v. §4-1.1(b) Half-bloods are treated same as whole bloods & adopted children are treated same as biological
children* Genetic children also included [
1. Different from the step children (a person share parents with another)
vi. §4-1.1(c) (Right of fetus): an utero child born alive when the decedent died. This child is the issue of the
trust and estate.
1. Children conceived before decedent’s death but born after decedent’s death are treated as if
they were born during decedent’s lifetime
vii. §4-1.1(d) Adopted Children
1. Adopted children and their adoptive parents can inherit from each other
2. Rights of children and their birth parents to inherit from each other  cut off as soon as
child is adopted (when a child is adopted out of a family, he becomes a stranger to his birth
parents).
3. Two exceptions:
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 a. The will includes the child by name or by some classification that is not based on
a parent-child or family relationship
b. Intra-familial adoption
4. Governed by DRL §117 (see below)
Example of application of EPTL 4-1.1
(1)D is survived only by her brother. 4-1.1 (a)(5) – survived only by issues of parents 
all to the issue of parents and by representation. Here
is only brother  D’s brother gets all.
(2) D is survived only by her four children. 4-1.1(a) (3), survived only by her issues by
representation  her children get all and by
representation
(3) D is survived only by her husband. 4-1.1(a) (2)  survived only by her spouse  her
husband gets all
(4) D is survived only by her husband and one of her 4-1.1(a)(1)  survived only by her spouse and issues
children. The other child predeceased D  her husband get 50k + ½ of the rest, and the rest to
(predeceased child left no issue) the children
If estate =75k
Her husband gets $50,000 plus half of the rest.
The rest is $250,000, so he gets a total of $175,000
(5) D is survived only by one child and one 4-1.1(a)(3)  survived only by issues by
grandchild. representation

Here, We don’t have enough facts. Where does that

grandchild come from? The living child, or a
predeceased one?

If the grandchild comes from the living child, he gets

(6) Let’s assume that the intestate decedent was
survived only by his mother’s mother and his father’s
sister.
nothing.
If he comes from a predeceased child, he gets one-
half.
4-1.1 (6) Divide the estate into maternal and paternal
halves.
If grandparents are alive, they get that respectively
half. If not, their half goes to their issue by
representation;
By representation goes only as far as the
grandparents’ grandchildren!
Here, GM gets half and A gets half.

(7) Let’s assume that the intestate decedent was 4-1.1(a)(6)

survived only by his mother’s mother and his father’s GM gets half and FC gets half.
niece.

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(8) Let’s assume that the intestate decedent was
survived only by his mother’s sister and his father’s
grandniece.
(9) Let’s assume that the intestate decedent was
survived only by his mother’s sister son and his
father’s brother’s daughter.
(10) Let’s assume that the intestate decedent was
survived only by his mother’s sister son and his
father’s brother’s son and daughter.
(6) Let’s assume that the intestate decedent was
survived only by his mother’s sister’s child and his
father’s brother’s grandchild.
4-1.1(6) – “for the purpose of this subparagraph (6),
issue of grandparent shall not include issue more
remote than grandchildren of such grandparents 
A1 gets the whole estate.
4-1.1(6) “if neither of them survives the decedent, to
their issue, by representation” FC1 gets half and FC2
gets half.
4-1.1(6) “One or more grandparents or the issue
of grandparents (as hereinafter defined), and no
spouse, issue, parent or issue of parents, one-half to
the surviving paternal grandparent or grandparents,
or if neither of them survives the decedent, to
their issue, by representation, and the other one-
half to the surviving maternal grandparent or
grandparents, or if neither of them survives the
decedent, to their issue, by representation”
FC1 gets half and FC2 and FC3 each get a quarter.
4-1.1(6): FC1 gets the whole estate.
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(7) Let’s assume that the intestate decedent was
survived only by his mother’s sister’s grandchild and
his father’s brother’s two grandchildren.
4-1.1(7) “Great-grandchildren of grandparents, and
no spouse, issue, parent, issue of parents, grandparent,
children of grandparents or grandchildren of
grandparents, one-half to the great-grandchildren of
the paternal grandparents, per capita, and the
other one-half to the great-grandchildren of the
maternal grandparents, per capita.”

FCOR1 gets half the estate, and FCOR2 and FCOR3

get a quarter each.

C. Disqualification – will no longer be able to inherit the estate

1) 4-1.4(c) states that under §4-1.4 (disqualification of parents) or §5-1.2, if there is a disqualification of
parent or spouse respectively, the disqualified individual is treated as predecease the decedent. We are
instructed to follow the normal intestacy statute §4-1.1.
2) Disqualification of Surviving Spouse [§5-1.2]
i. Spouse cannot take from deceased estate if:
a. (1) a valid NY recognized decree or judgment of divorce or annulment or decalring the
nullity, that was in effect when decedent died (b/c the DRL says you can annul after
decedent’s death)
i. ex parte divorces are not recognized as valid in NY
ii. If one party dies during the pendency of a divorce proceeding, the proceeding
abates, leaving the other as a surviving spouse
iii. If the decedent was the one who procured the divorce, the surviving spouse can
still inherit.
b. (2) Marriage is void [by bigamy, incest or prohibited re-marriage]
c. (3) Surviving Spouse ex parte got a divorce that is NOT recognized in NY [§ 5-1.2(a)(3)]
(doesn’t matter if the deceased spouse did)
d. (4) a NY recognized and effective separation in-state at the time of decedent’s death
e. (5) Surviving spouse abandoned the deceased spouse, and such abandonment continued
until the time of death.
i. Departure without an intent to return and without consent
ii. Mere separation is not a valid ground of disqualification.
f. (6) Surviving spouse failed/refused to exercise his/her duty to provide support to the dead
spouse although he/she was able (duty to support) UNLESS marital duty was resumed
and continued until death of spouse having need of support
ii. Surviving spouse gets disqualified from taking in intestacy, right of election, inheriting exempt
assets, damages from wrongful death lawsuit

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 iii. NOTE: Gay marriages and out-of-state common law non-ceremonial marriages that are
recognized by other states qualify as marriages in New York.

3) Disqualification of Parent to take Intestate Share [§4-1.4]

i. Parent cannot take share of child’s estate (under 21) through intestacy when parent
a. (1) Has failed/refused to provide for child, abandoned child, whether or not child dies
before reaching 21 unless duties are resumed and continued until child’s death
a. Resume supporting the child (when kid is still under 21)  you can regain the
right to inherit.  must before 21.
b. Level of support depends on parent’s ability to pay
c. Irrelevant whether child has another means of support & irrelevant if no court
has ever ordered the parent to support the child
d. Payments must be made to the child’s custodial parent, not directly to the
child
b. (2) When parental rights are terminated in a proceeding (§4-1.4(a)(2))
a. If parental rights were suspended, the surrogate court decides whether the
parent was compliant and can take; if not complied  disqualified
c. (3) If parent put the child up for adoption [§4-1.4(b)]
a. biological parent will not be considered to have abandoned or failed to support
the child if she took every step necessary to place the child but the adoption
did not occur b/c of fraud or deceit
i. Ex: [Lisa Steinberg Case: lawyer told mom he would give girl up for
adoption– he kept, abused and killed her. Mom disqualified b/c didn’t
see C for 9 years, she wanted to sue but didn’t have standing. Ct held if
a fraud was perpetrated on you, you’re NOT disqualified under§ 4-
1.4(b)]
ii. If parent is disqualified, treat them as having predeceased child

Questions on disqualification
1. Which of the following is not true? A mother is disqualified from inheriting from her child in intestacy if
she
a. fails to support him.
b. abandons him.
c. divorces the child’s other parent.
d. loses her parental rights in a court proceeding.
2.Which of the following is not true? A wife is disqualified from inheriting from her husband in intestacy if
she
a. fails to support him.
b. obtains a valid divorce from him.
c. obtains a divorce from him that’s not recognized in New York.
d. separates from him.
Suppose the deceased spouse left property to her surviving spouse under her will. Does EPTL 5-1.2
disqualify him for any of his behaviors? (Spoiler alert: see EPTL 5-1.4.)  yes revokes any revocable … by
will… by TOD,…by revocable trust…

NON-MARITAL CHILDREN, ADOPTED CHILDREN, GENETIC CHILDREN

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A. Inheritance by Non-Marital Children [§4-1.2]  meant to accomplish right of non-marital children to
inherit from birth parents
i. What are non-marital children? Children who count despite not being born within the marriage. These
rules apply to distribution and disposition. Used to be considered illegitimate and not able to inherit.
a. See § 2-1.3(a)(3) – incorporates nonmarital children into wills (instrument).
b. §4-1.2 is the only statute that directly deals with non-marital children
ii. General Rule: a non-marital child is entitled to inherit from and through his mother, and he can inherit
from and through his father if he has made one of the proofs of paternity
a. Non-marital children of the mother: the child automatically inherits [§ 4-1.2(a)(1)] hard to hide
the mother, paternity is very clear
b. Father  need more evidence
iii. Non-marital children of the father: paternity is often disputed, so there are evidentiary standards [§ 4-
1.2(a)(2)]
i. They can inherit if any of the following are true:
a. A court has made an order of filiation declaring paternity during the life of the father OR
both parents have executed an acknowledgement of paternity and filed it with the
registrar of the district in which the birth certificate has been filed.
b. Father signed instrument acknowledging paternity and file with Putative Father’s
registry in Albany
a) with one or more witness, and acknowledged by such witness or witnesses before a
notary public or other officer authorized to take proof of deeds, and
b) filed within 60 days from the making with the putative father registry established
by the state department of social services, and
c) within 7 days of the filing of the instrument, the department of social services shall
send written notice by registered mail to the mother or guardian that
acknowledgement of paternity instrument filed by father.
c. Paternity has been established by Clear & Convincing Evidence [DNA testing] or Father
has openly & notoriously acknowledged child as his own
 Evidence from a genetic marker (DNA) test OR Nothing regarding genetic
marker tests expands/limits § 4210 of public health law, which does not allow
bodies to be dug up to perform DNA test/establish paternity unless amazing
circumstances (can be DNA from a hair brush)
iv. Hoffman case  issue refers to biological & non-marital children [both legitimate & illegitimate]  Non-
marital children can inherit: unless Testator says otherwise, issue in a will, will include non-marital
children.
v. If a non-marital child dies: his surviving spouse, issue, and parents inherit so long as paternity has been
demonstrated under any of the methods described above EXCEPT a DNA test. § 4-1.2(b)  you cannot
do DNA test after father’s death)
vi. Note4-1.2(b)- if child grows up & has an estate, the dad can inherit from the child as long as the same
proofs are made (goes both ways)  both ways, parent inherit from died child or child inherits from died
parents

B. Inheritance by Adopted Children [Domestic Relations Law §117]

i. Public policy: The state wants to encourage adoption so that kids have parents that want to care for them,
so they don’t become wards of the state, and so they don’t “double-dip” by looking for their biological
parents
ii. Adopted children: Adopted children are treated the same as biological children if they qualify under
Domestic Relations Law § 117.
iii. §4-1.1 relates to adopted children receiving in intestacy and you have to go to the Domestic relations law
iv. §2-1.3 relates to adopted children in wills, where the term issue includes adopted children and their issue.

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 v. In will, if testator has not expressed otherwise, disposition to issue includes adopted children & their
issue
vi. Intestacy (2-1.3) Domestic relations law
a. Biological Parent → has NO rights to child’s property
b. Adopted-out Children: do NOT inherit (or count as “issue” in a will) from their biological
parents, and their biological parents do not inherit from them UNLESS there is an express
contrary indication or the child is named. Domestic Relations Law §117(1)(a) and (b)
i. Matter of Best: A child adopted out of the family by strangers does NOT
presumptively share in a class gift to the biological grandmother’s 1973
testamentary trust.
ii. Matter of Fleet Bank: Same scenario as Best but with class gifts created by 1926 and
1963 irrevocable trusts → if the child is adopted out, the only way we are going to
let him/her take is if he/she is named in the will, or to all my children including
those who have been adopted out
c. Adopted Child cannot inherit from biological parents, however, EXCEPTIONS:
a. Decedent / Testator is either the: (who is the decedents)
i. Adoptive child’s birth grandparent OR
ii. Descended from that grandparent, AND,
b. An adoptive parent is (who is the adoptive parents)
i. Married to the child’s birth parent (stepparent) OR
ii. The child’s birth grandparent OR
iii. Descended from such grandparent.
c. But, adopted child who is related to decedent by both birth & by adoption shall
be entitled to inherit ONLY under birth relationship UNLESS decedent is also
adoptive parent, in which case adopted child entitled to inherit ONLY under
adoptive relationship
d. If they fall under exception, can inherit under both in the will and under intestacy
d. Adopted Child can inherit from adopted parents/family members & vice versa. They have
right to inherit ‘from & through the other’ [treated as a biological child]  children count as
“issue”
i. A biological parent who remarries and consents that the step-spouse adopts does not
affect the right of original parent and child to inherit from each other. DRL 117(1)(d)
ii. DRL 117(1)(e): one way method
vii. Adopted children and birth children = have all rights of fraternal relationship [can inherit from each
other]
viii. Birth parents & birth relatives can include adopted out children in their wills, but must specify them by
name (then your birth child will become your issue as long as you specify their name in your will)
ix. Examples:
1. W marries H and has child C. Later H dies, W marries H-2, and H-2 adopts C.
a. If H-2 dies intestate, can C inherit from him? Yes → §117(1)(c)
b. If H-2’s mother dies intestate, predeceased by H-2, can C inherit from her? Yes → §117(1)(c),
specifically, “child ... shall have all the rights ... including the rights of inheritance from and
through each other and the birth and adopted kindred of the adoptive parents or parents.”
c. If H’s mother dies intestate, can C inherit from her? Yes → §117(1)(e) - b/c the decedent is
the adoptive child’s birth grandparent (e)(1) & the adoptive parent is married to the child’s
birth parent (e)(2). Thus, subparagraph (e) is satisfied which nullifies subparagraph (b)’s
statement that the adoptive child’s ability to inherit through birth parents and up is terminated.
2. W marries H and has child C. Later, W and H divorce, and W’s new husband, H-2, adopts C. Then
H dies, and finally, H’s mother dies, leaving her whole estate to her “issues.” Can C share in her
estate?

13
 Yes →§117.2(b) - b/c the adoptive parent is married to the child’s birth parent (b)(1)(i) & the
testator is the child’s birth grandparent (b)(2).
3. W marries H and has child C. Later, W and H divorce and, b/c W is an awful mother, her mother
adopts C after a court has terminated H’s parental rights. Later H dies, and finally his father dies
intestate.
a. Can C share in their estates as a distribute? Yes → 117.1(e) - b/c the decedent is the adoptive
child’s birth grandparent (e)(1) & the adoptive parent is (e)(2)(ii) the child’s birth
grandparent.
b. If C predeceased H without a spouse or issue, can H share in C’s estate? No → 117.1(e)
applies only to the rights of an adoptive child to inherit from and through the parent. It
doesn’t work the other way around (i.e., birth parent inheriting from the child). Thus,
§117.1(a)’s termination of inheritance.
4. S has three children, C-1, C-2, and C-3. When C-1 was four years old, S surrendered him for
adoption to her brother, B-1, who had no children. B-1 died last year. This year, S’s brother B-2 died
intestate, with no wife, issue or parents. In addition to the people already mentioned, B-2 was
survived by another brother, B-3, who had a child, C-4. Who gets what in B-2’s estate?
S & B3 each get 1/2 of B2’s estate. C1 doesn’t collect b/c of the last paragraph in §117-1(e), which
basically says where the adoptive parent is related to the decedent both by birth relationship and
by adoption shall only inherit from the birth relationship. Except where the adoptive parent dies,
then the adoptive kids take under the adoptive parent. 16:31 1-19b
5. S has three children, C-1, C-2, and C-3. When C-1 was four years old, S surrendered him for
adoption to her brother, B-2, who had no children. S died last year, and this year B-2 died intestate
with no wife or parents. In addition to the people already mentioned, B-2 was survived by another
brother, B-3, who had a child, C-4. Who gets what in B-2’s estate?  C1 gets B2’s entire estate b/c
of DRL §117.1(e)’s exception.
Example of application of DRL 117
Assume that a woman has a child and gives the child up for adoption through an adoption agency. She never
meets the couple who adopt the child.
(1) Can the child inherit from the birth mother No, The adopted out child cannot inherit or succeed
from his birth parents when the making the order of
adoption – DRL §117 (1)(b)
(2) Can the child inherit from the adoptive parents Yes, The adopted child can inherit from the adoptive
parents (and adoptive grandparents etc.) and vice
versa – DRL §117(1) (c)
(3) Can the adoptive parents inherit from the child Same as above
(4) Can the child inherit from the adoptive YEs 117(1)(c) – “inheritance from and through each
grandparents other…”
Can the child inherit from the birth grandparents No 117 (1)(b); (exception - If meeting the
requirement under DRL-117(1)(e) see above)
If the birth grandmother writes a will leaving her General rule NO, unless the instrument at issue
estate to her “issue,” can the child share as one of the expresses an intention to include adopted away
issue children within a class, where the adopted away child
is named individually in the instrument, or where the
adopted away child is included in a class which is not
based on the parent-child or family relationship DRL
117(2)(a).

Assume a mother first has a son, is then widowed, and then remarries. Assume further that her husband
(the child’s stepfather) adopts the child. In the first questions, assume that the decedent was intestate.
(intestate  DRL 117(1)(e)
Can the child inherit from her (the birth mother) Yes, 4-1.1, 117(1)(d): professor’s paraphrase: if the
14

Can the child inherit from the second husband
Can the child inherit from his birth father’s mother
Can the child inherit from his birth father’s sister,
who had no spouse, issue, parents or other siblings
If the child dies with no other relatives, can the aunt
mentioned in (d) inherit from him
If all the adults have died, can her child inherit from
an unmarried childless child born to the mother and
the second husband (this is half-blood)
If all the adults have died, can her child inherit from
an unmarried childless child the second husband had
with his first wife before he married the child’s
mother (this is not half-blood)
In this question, assume that the child’s birth
grandmother made a will giving her estate to her
“issue” can the child share as one of her issue.
child’s biological parent marries and consents to the
stepparent’s adopting the child, she and her child still
have the right to inherit from and through each other
Yes 117(1)(c) – from and through each other between
adoptive parents and the adoptive child.
Yes, (1) decedent is the grandparent, and (2) the
adoptive parent is married to the child’s birth mother
 the right of an adoptive child to inheritance and
sucession from and through either birth parent shall
not terminate upon the making of the order of
adoption
Not 117(2)(a) because it is not under “any
instrument”
Yes, because 117(1)(b) and 117(1)(e) (see the analysis
above)  mechanical application
Yes (1) decedent is the descendent of the grandparent
and the other are the same as the question above 
then applying 4-1.1
No! 117(1)(a), “except as hereinafter stated”, and
nothing in (1_)e) makes an exception to that, it goes
only one way: to the child; not other way
Yes,
She’s a half-sibling under EPTL 4-1.1(b) …
117 (1)(c): from and through each other and the birth
and adopted kindred of the adoptive parents or parent.
(when a granddaughter is adopted grandmother, she is
not a sibling of her aunt – last paragraph of (1)(e), (2)
(c)last sentence)
117(1)(g), share birth parent – mother, half blood
treated as the full blood?
Yes, 117(1)(c): The adoptive parents … and the
adoptive child shall sustain toward each other the
legal relation of parent and child and shall have …
the rights of inheritance from and through each
other and the birth and adopted kindred of the
adoptive parents or parent.
117(2)(b). Yes this child can inherit (intra family
adoption)

C. Genetic Children
1. Situation where a child is conceived after the genetic parent’s death.
2. In the matter of Micheal B: Grandpa left a trust for his wife...and if she dies, the remainder will go to
issues. Their issue was married and he was really sick. They put sperm in a bank so that if he died his
wife could still have children. Husband (issue) died, and wife used the sperm and had 2 children within
the time frame. Court held that these children were considered “issues.”
3. In Re Martin B: Unless the language or circumstances indicate that the transferor had a different
intention, a child of assisted reproduction be treated for class-gift purposes as a child of a person who
consented to function as a parent to the child and who functioned in that capacity or was prevented from
15
 doing so by an event such as death or incapacity.  Rationale: when a governing instrument is silent,
children born of this new biotechnology with the consent of their parent are entitled to the same rights
“for all purposes as those of a natural child.”
4. EPTL §4-1.3 introduces four requirements for a posthumous child, referred to in the statute as a “genetic
child,” to inherit from the genetic parent in intestacy or under a will or trust.
a. “Genetic parent” shall mean a man who provides sperm or a woman who provides ova used to
conceive a child after the death of the man or woman.
b. “Genetic child” shall mean a child of the sperm or ova provided by a genetic parent, but only if
and when such child is born.
c. The genetic parent in written instrument executed not more than 7 years before the death of the
genetic parent. Requirements:
1) The genetic parent storing the sperm or ova (a/k/a an egg cell) must expressly consent to the use
of the genetic material for posthumous conception and authorize a person to make decisions
about the use of the genetic material after his or her death.
-- Such consent and authorization must be in a written instrument, which is executed not more
than 7 years before the death of the genetic parent.
2) Notice of the existence of the genetic material must be provided by the authorized person to
the personal representative of the estate
a. within 7 months of the issuance of letters testamentary or of administration on the estate
of the genetic parent or if no letters have been issued within 4 months of the death of the
genetic parent, and
b. within 7 months of the death of the genetic parent to a distribute of the genetic parent.
3) The authorized person must record the written instrument within 7 months of the genetic
parent’s death with the Surrogate’s Court granting letters on the genetic parent’s estate.
4) The genetic child must be in utero within 24 months of the genetic parent’s death or born no
later than 33 months after the genetic parent’s death.
5. If the above requirements are met, the genetic child will be entitled to inherit from the genetic parent as
a distributee, should the genetic parent die intestate.
o The genetic child will have inheritance rights under any trust or will that provides for a
disposition of property to a class of beneficiaries that include the genetic child (i.e. the
genetic parent’s issue, children, descendants, etc.).
o Importantly, the genetic child’s inheritance rights under the statute are not limited to an
inheritance from the genetic parent.
o For purposes of section 3-3.3 of this chapter the terms “issue”, “surviving issue” and
“issue surviving” include a genetic child if he or she is entitled to inherit from his or her
genetic parent under this section.
o Social Security:
a. Because the genetic child can be a distributee of the genetic parent, he or she will
be entitled to Social Security survivor benefits based on the genetic parent’s
earning record. The child also will be included in any gift in an instrument created
by the genetic parent to the genetic parent’s children, issue, descendants, or other
classes described by similar terms.
b. Astrue v Capato: if you are an interstate distributee, you are included!
o In intestacy:
a. Proposed ETPL 4-1.3 (b) provides that, if the requirements of the paragraph are
met, the genetic child is a child of the genetic parent. This provision means that
the genetic child will inherit through the genetic parent so long as the genetic
child is conceived during the lifetime of the intestate decedent (4-1.1(c) could
born after the decedent’s death), is born alive and survives 120 hours.
b. How about grandparents? Only if the child was in utero before grandmother died
—if not, genetic child won’t be considered grandmothers issue.
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 i. So if they ever want the genetic child to be included, MUST DRAFT A
WILL STATING “issue”
ii. EPTL 4-1.1(c) Genetic children are considered distributees only if they
were in gestation AT OR BEFORE grandmother’s death and born alive
within 120 hours thereafter.
o In instruments:
a. Proposed EPTL 4-1.3(f) parallels EPTL 2-1.3(a)(3), which deals with rights of
non-marital children under the instruments of persons other than the parents of
the children. It provides that if the genetic child is entitled to inherit from the
genetic parent under proposed EPTL 4-1.3, the genetic child is a child of the
genetic parent for purposes of gifts in instruments to children, issue, descendants
and similar classes in instruments, whether of the creator or of other persons.
b. Instruments created by another person besides the genetic parent, the genetic
children are considered an “issue” as long as it is after September 1, 2014 you
need to know when the death (i.e. of the grandma) was!
i. i.e.: W had a genetic child and used the rules perfectly. Her mother
(genetic child’s grandmother) made a gift of 100k to be shared equally
among her “issue by representation” grandma died after September 1,
2014genetic child shares this because he is a considered an issue.
However, if died before this date, not allowed to take from the will!
a. 1-2.16 By Representation: each surviving number in such nearest
generation is allocated one share, the remaining shares are
combined and then divided in the same manner among the
surviving issue of the deceased issue.
o Living Trusts
a. Assume that H had a revocable living trust to pay income to his wife for life,
remainder to his “issue per stirpes.” Would the posthumous children take the
remainder? Yes, because they are the issues under 4-1.3(b).
a. Per Stirpes 1-2.14: Each surviving member in such nearest generation is
allocated one share. The share of a decreased issue in such nearest
generation who left surviving issue shall be distributed in the same
manner to such issue.
o Genetic children conceived and born well outside of the applicable time limits
a. Would not be considered as issue/ distributee
o However, with respect to dispositive instruments in which the genetic parent is not the
creator, the new law will be applicable only to wills of persons dying on or after Sept. 1,
2014, and to lifetime trusts executed on or after such date. For instruments created by the
genetic parent, the new law is effective immediately.

1. Can the genetic child inherit from intestacy from his father? Why or why not?
Yes. EPTL 4-1.3(b).

2. Can the genetic child inherit from intestacy from his paternal grandfather if his father predeceases
the grandfather? Do you need to know more?
You need to know more. When did the grandfather die? Was the genetic child in utero or not?
If yes, he can inherit from his grandfather. If no, he can’t. Because EPTL 4-1.3 overrides EPTL 4-1.1(c)
only for the parents, not the grandparents, of the genetic child.
3. If the genetic child’s father leaves his estate to his “issue,” is the genetic child included?
Yes. EPTL 4-1.3(b). This provision covers instrument and intestacy of parent only
4. If the genetic child’s grandfather leaves his estate to his “issue” and the child’s father predeceases

17
the grandfather, is the genetic child included?
It depends. Did the grandfather die after Sept. 1, 2014? If yes, the child is included as “issue.” If no,
he’s not. Applying EPTL 4-1.3(f) which covers will written by people other than parents.

Example of Application of EPTL 4-1.3

H and W were not ready to start a family, but they knew they wanted to eventually. A cautious couple, they
decided to cryopreserve some of H’s sperm in case H met with an accident or illness.

Simultaneously with donating his sperm, H signed a writing in 2013 that he intended his sperm to be used
to produce children after his death and authorized W to make that decision. Two reputable adults
witnessed the document.

Sadly, H became sick and died in 2014, and his wife gave birth to his daughter in 2015 and his son in 2016.
Within seven months of H’s death, W gave notice to H’s executor (his brother) that H’s genetic material
had been frozen, and she filed a copy of that letter in the Surrogate's Court in the county where they lived.

Read the statute and answer the following questions about the rights of these children. Assume H and W
had no children before these little posthumous ones
1 Can they inherit from their father if he died intestate? If your answer is yes, what would they get?
Yes, applying 4-1.3(b) + 4-1.1 (a)(1); they would get what’s left of H’s estate after W has received $50k
plus half of the rest.
2 Assume that H had a will and left 75% of his estate to his wife and 25% to be shared equally by his
“issue by representation.” Would the posthumous children get that 25%?
Yes, subparagraph (b)
3Assume that children of a decedent dying in this way are entitled to survivor benefits under Social
Security. Would the posthumous children qualify?
Yes , §4-1.3 (b)(notwithstanding subparagraph (2) of paragraph (a) of section 2-1.3) + Asture v. Capato
(SC 2014)
4 Assume that H had a revocable living trust to pay income to his wife for life, remainder to his “issue per
stirpes.” Would the posthumous children take the remainder
Yes, §4-1.3 (b)
5Assume that H’s mother made a gift in her will of $100,000 to be shared equally among her “issue by
representation.” Assume she has two surviving children and the two grandchildren born posthumously to
H. How should that $100,000 be divided? Have I given you enough information to answer the question?
What else would you need to know? Once you’ve figured it out, make an assumption and answer the
question
Information is not enough  You need to know when she died. If on or after September 1, 2014, the
genetic child is included.
assume died after Sep 1, 2014  In that case each surviving child will get $33,333, and the two little ones
will share $33,333 ($16,667 each)
If the decedent died before Sept. 1, 2014, the two surviving children get $50,000 each
6Assume that H’s mother died intestate just after H’s death, before her daughter-in-law became
pregnant. Are the posthumous children entitled to share in her estate (because (b) applies to parents’ will
and intestacy, (f) applies to others’ will but NOT others’ intestacy. )
No, Look at EPTL 4-1.1(c). Posthumous children are considered distributees only if they were in gestation
at the grandmother’s death and born alive thereafter. (By the way, they also have to survive for 120 hours –
stay tuned for EPTL 2-1.6.)
7Assume that H’s mother died intestate a year after H’s death, while her daughter was pregnant with her
first child. Would either or both posthumous children be entitled to share in her estate
Look at EPTL 4-1.1(c). Only the gestational child would be (so long as she survived her grandmother by at

18
least 120 hours, as you’ll see).
8 Assume that H’s mother gave H a gift of $100,000 in her will, and that H predeceased his mother. Are
the posthumous children allowed to take his share under EPTL 3-3.3 (anti-lapse statute)
Yes under 4-1.3(g) if the genetic child is entitled to inherit form his or her genetic parent under 4-1.3.
9 Assume that H and W had two children before he deposited sperm in the sperm bank, and that his will
gave $100,000 to each of those children. Would the posthumous children be entitled to share in that gift?
No, This anticipates a statute you haven’t studied, EPTL 5-3.2, which governs the rights of after-born
children. See 5-3.2(b).
10. can the genetic child inherit from intestacy from his paternal grandfather if his father predeceases the
grandfather? Do you need to know more?
4-1.3(f) have everyone else but only applies to the will. For the intestacy, look at 4-1.1(c) – whether when
the grandfather die, he is in the uterous
11. “to issue”
Yes EPTL 4-1.3(b)
12. if the genetic child’s grandfather leaves his estate to his “issue” and the child’s father predeceases the
grandfather, is the genetic child included?
Yes, EPTL 4- 1.3 (f)

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 DEATH: FAILED GIFTS--ANTI-LAPSE & RESIDUE
ANTI-LAPSE
A. Common Law-If you left something in your will to a person who died before you, the gift would lapse. If it
was a pre-residuary gift…it would go to the residuary. If it was a residuary gift…it would go to intestacy.
B. Anti-Lapse [§ 3-3.3(a)(2)] – Applies ONLY to issue, brothers or sister of testator
1) Lapse and anti-lapse are complementary concepts under the law of wills, which address the disposition
of property that is willed to someone who dies before the testator (the writer of the will)
a. When gift lapses, becomes part of residuary [residuary gift lapses into intestacy] and will not
go to the person in the beneficiary however, if it says to my issue, brother, or sister, the
anti-laps statute kicks in and the $ will go to their issues.
2) Specific bequest: A bequest or devise is a testamentary gift of a specific item of property (e.g., a
Picasso painting/ 200k) that can be easily identified and distinguished from all other property in the
testator’s estate.
3) When testator leaves a gift to a person who dies before him, what happens to the gift when that
beneficiary dies before testator? - as a general rule, beneficiary must survive testator to get his gift
otherwise it lapses
a. What happens in case of a lapse: if the will says $100,000 to X, and the residuary to Y, if X dies
and the gift lapses, Y gets it (lapses into residuary estate)
4) Unless the will provides otherwise (default rule):
a. [§ 3-3.3(a)(2)] Instruments executed on or after Aug 31 1992, whenever a (1)
testamentary disposition is made to the issue or to a brother or sister of the testator,
and (2) such beneficiary dies during the lifetime of the testator (3) leaving issue
surviving such testator, such disposition does not lapse but vests in such surviving issue,
by representation.
a. (1) Disposition is made to specific category of testators: testator’s brother,
sister and issue
b. (2) The beneficiary died during the lifetime of the testator, and
c. (3) The beneficiary has issue surviving the testator
b. [§ 3-3.3(a)(3)] when (a)(2) applies to class gift (brother and sister), but Statute
won’t apply if testator uses the word- “issue” or “descendants” (but if use “children” or
“grandchildren” (a)(2) still applies) because when one parent dies before
grandparent’s death, the grandchildren become the issue of the grandparent
automatically. Go to 2-1.2 when use of issue or descendants (this provision renders 3-
3.3.3(a)(3) redundant).
a. Still using §3-3.3(a)(2) when use children or grandchildren (if say to
children, then deliberately exclude the grandchildren.
c. [§ 3-3.3(a)(3)] only applies to class gifts to single generation. Multigeneration gift such as
to “issue” or “descendants” already pass the shares of deceased class members to their
surviving descendant without statutory intervention. (why excluded issue and descendant?
To all sibling if a brother predecease the testator  §3-3.3(a) without exclusion, the
brother’s son would take  this default rule is not good)
a. For example, a grandma say giving to the issue $200, even father
predeceased, 200 will go to grandson anyway under EPTL §2-1.2 don’t
need §3-3.3 (anti-lapse)
b. If say “children”  go to §3-3.3(a)(2) not (3) because children go to one
generation whereas, “issue” goes to several generations
d. [§ 3-3.3(b)] NOTE: Includes adopted and non-marital children
a. Can also apply to an adopted-out child who was specifically named in
the will just name the adopted out child

20
 b. Adopted children are considered issue & non-marital children are issue if
DRL § 117 would consider them such
i. Ex1: suppose T bequeaths $100k to her brothers and sisters. After
executing the will, T’s parents have another child, C (after-born
child). C predeceases T, leaving issue.
1. C’s issue can take his bequest
ii. Ex2: mother of an adopted-out child developed a relationship with
that child later in life, then provided in her will that this child gets
something. But this adopted-out child predeceased the testator. Q:
does being named in the will reestablish one’s status as issue?
1. Court of Appeals  held that adopted-out child is
considered issue b/c she is in the will by name, thus no
longer a stranger – thus her children can take under the
anti-lapse statute (Estate of Murphy) 117(2)
2. general rule is stranger unless contrary intent is shown
5) Issue = decendents in any degree from a common ancestor--. adopted children and children’s issue
6) Note: The testator can prevent the operation of an anti-lapse statute by providing that the gift will only
go to the named beneficiary if that beneficiary survives the testator, or by simply stating in the will that
the anti-lapse statute does not apply.
7) Deactivating the anti-lapse statute
1. If there is a requirement that a beneficiary survive some event: the anti-lapse statute is deactivated
a. Just saying "to my surviving daughter" or "provided that she survive me" deactivates the
statute  anytime there is a requirement of “survival” added into provision of a will, anti-
lapse will be de-triggered.
a. Ex1: decedent gave his residuary estate to his 3 siblings, “or the survivors of them.”
Deactivated this statute
b. Ex2: testator, who had one intestate distributee (a grandchild) gave his estate to his 2
sisters and provided that if one of them should predecease him, the other should take
the whole. Both sisters predeceased, only one leaving issue.
i. The testator had deactivated the anti-lapse statute, but only if one of the
sisters predeceased
ii. If the court held that the testator did not deactivate the anti-lapse statute, the
nieces would take the estate (by operation of § 3-3.4, residue of a residue
statute)
iii. If he did deactivate the anti-lapse statute, the grandchild would take the
estate in intestacy
iv. Held: anti-lapse statute did not apply and the grandchild should take
c. Ex3: testator gave estate to her children (A, B, C, D) in equal shares, or all to
survivor should only one of them survive her. One child predeceased her
i. Held: anti-lapse did not apply and that only the surviving children
should share, not the grandchildren from the predeceased child
b. If a beneficiary violates a condition: the anti-lapse statute is deactivated.
8) Renunciation  treated as though person who renounced has predeceased the testator (§2-1.11)
a. Trigger the anti-lapse statute
b. If X renounces a gift/testamentary disposition  X’s issue are entitled to it.
9) If a beneficiary forfeits her share as a witness-beneficiary: the gift is void and the anti-lapse statute
inaccessible. § 3-3.2(a)(1)  deactivated anti-lapse
10) Examples:
a. In his will, D bequeathed $200,000 to his brother B, $400,000 to his wife W, $40,000 to his niece
N, and the residuary estate (which amounted to $100,000) to Habitat for Humanity. D died

21
 yesterday. Sadly, B, W, and N had all predeceased D and each left two children surviving him.
Who gets what in D’s estate?
Each of the brother’s children get 100,000. His children get nothing. The niece’s issue gets
nothing. Habitat gets 540,000.
b. D’s will contained the following clause: “I give my residuary estate to my children.” Another
child is born after D executes his will. Is that child entitled to a share of the estate?  Yes.
Part of a class
c. D’s will contained following clause: “I give my residuary estate to my brothers and sisters in
equal shares.” D’s eldest sister was already dead when D made his will, leaving issue surviving
her. Is that child entitled to share of the estate? - No
d. T leaves 100k for each of his sisters. His one sister dies leaving child N.  N would get her
mother’s 100K.
e. T gives 100k to each of his sisters and that his sister dies leaving child N, and his sister S2 dies,
leaving children N2 and N3.  N gets 100k (from s) and N2 and N3 split the 100k (from s2).
f. Assume that T will gives 100k to his issue by representaion and that his only son S predeceases
him leaving children G1 and G2, and his only daughter D predeceases him leaving children G3,
G4, and G5.  all grandkids would take equally, by representation

Residue of a Residue [§3-3.4]

1) Presumption that if testator took action to do a will, he didn’t want to be intestate
2) This statute is triggered anytime a residuary gift is ineffective (As compared with the anti-lapse statute,
which is only triggered by the death/renouncement of a beneficiary)
3) Consequences of partly ineffective testamentary disposition where anti-lapse does not apply→ goes to
remaining residuary beneficiary or in proportion if 2 or more bens.
 Residue of a Residue § 3-3.4: when a residuary disposition is ineffective, (as of the date of the
testator’s death) in part, the ineffective disposition will pass to the other residuary
beneficiaries ratably (proportionately) unless (1) the testator has provided otherwise OR (2)
the anti-lapse statute applies to the lapsed portion (§3-3.3)
 Residuary beneficiary” includes those who take via the anti-lapse
o Ex: Testator leaves her residuary estate to (“entire estate”) A and B in equal shares. A
predeceases T.
 If A is the testator’s sibling (brother or sister) or issue and leaves issue surviving T, A’s
share passes to his issue (anti-lapse- §3-3.3)
 If A is not T’s sibling or issue, this statute (§3-3.4) applies and A’s share passes to B
irrespective if A has kids.
 • When trigger §3-3.4
 • If anti-lapse statute (§3-3.3) DOES NOT apply (b/c the bequest is not to issue,
brother, or sister) + residuary clause are partially ineffective  this statute (§3-3.4) is
triggered
4) Ways that a residuary benefit could be ineffective in part:
a. (1) Renunciation by beneficiary
b. (2) Disqualification (spouse or parent)
c. (3) Murdering the testator
d. (4) Beneficiary served as attesting witness to the will (thus gift is void  Statute-of-Wills
formalities)
5) Examples:
1. Ex: $10k to X, residuary to Brother and Z in equal shares. Brother predeceases testator.
a. Residue of a Residue Statute is not invoked b/c anti-lapse clause (3-3.3) applies  Brother’s
share will go to his issue
b. What if brother dies without issue? Residuary goes to Z

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 c. What if brother renounces?  Goes to his issue If no issue – goes to other residuary
beneficiaries ratably
d. What if both B and Z predecease testator, with only B leaving surviving issue? B’s issue get
it all (they take on the status of residual beneficiaries)
2. D died yesterday, leaving her estate ½ to her son, S and ½ to her daughter, D-2. Both S and D-2
predeceased her. D-2 left issue surviving D, and S left none.
a. This is considered a residuary gift. D-2’s issue gets it all – they take on status of residual
beneficiaries via 3-3.3. Intestacy does not kick on.
3. D died yesterday, survived by grandchildren and no other relatives. She left her residuary estate as
follows: ½ to her friend X, ¼ to her cousin Y, provided Y had not resumed her relationship with the
notorious Z, and ¼ to her niece N. Everyone survived D, but Y had resumed her relationship with the
notorious Z.
a. At first 2:1:1 ratio. But, Y’s share lapses. Therefore, new ratio of 2:1. X gets 2/3 and N
gets 1/3.

Rule for Trusts: § 2-1.15 [anti-lapse is inapplicable here]: applies to both lifetime and testamentary trust.
1) If, when the remainder of a trust passes, a gift is ineffective in part, the gift passes
proportionally to the remaining beneficiaries.
a. With a trust, if you leave out the survivorship language/condition of a remainder, person gets
it remainder of trust whether or not he survives (if dead, it passes into his estate)
b. “Income to my husband, remainder to my children (or equal share to kids).” If one of the
children dies, share goes to kids of decedent.
2) If clause says “remainder to those who shall survive my husband” ... “ineffective remainder in part” in
§2-1.15 kicks in and share passes to remainder man pursuant to statute.
3) V.s §3-3.4
a. Hypo: T created a testamentary trust (created in T’s will) to “pay the income to her son
S for life, remainder to S’s daughters D1 & D2 if they were alive at S’s death.” D1
predeceased Testator. How should the trustee distribute the remainder?
i. §3-3.4 does not apply to the hypo because §3-3.4 requires as of the date of the
testator’s death. Here, the residuary is partially ineffective at S’s death.
ii. §2-1.15 allows D2 to get D1’s share
1. [§2-1.15]: When remainder of a lifetime or testamentary trust passes to 2 or
more designated beneficiaries, and such remainder is ineffective in part, and no
effective alternative disposition has been made, the ineffective part passes to the
other designated beneficiary
2. If there are 2 or more other designated beneficiaries, ineffective part passes to
such beneficiaries ratably - in the proportion that their respective interest in
such principal bear to the aggregate of the interests of such designated
beneficiaries in such principal
3. This statute is triggered upon the death of a trust’s income beneficiary, as
oppose to testator’s death under §3-3.4
4) NOTE: This section does not abrogate the rule that a remainder interest is vested UNLESS the
trust instrument specifically states a condition (for details, see trust portion of this outline)
a. EX: If grantor makes a trust to pay income to herself for life, remainder to A, B, and C, and C
predeceased her, his vested 1/3rd passes as part of his estate.
b. If you do not state a condition, there is no condition in a Trust
c. **ONLY IF THE REMAINDER INTEREST IS NOT VESTED DOES THIS SECTION
PREVENT A LAPSE BY PASSING THE PREDECEASED REMAINSWEMAN’S SHARE
PROPORTIONATELY TO THE OTHER REMAINDERMEN.
Basic question of Lapse and Anti-lapse
1.What happens if T writes a will giving $5,000 to his grandmother, and the residue to A, and his
23
grandmother predeceases T?
A gets it. That is, the gift to the grandmother lapses. A lapsed pre-residuary gift “falls” into the residue
2. what happens if T writes a will giving $5,000 to A, and the residue to his grandmother, and his
grandmother predeceases T?
A gets $5,000, and the rest of his estate passes in intestacy. That is, a lapsed residuary gift “falls” into
intestacy
3. What happens if T writes a will giving $5,000 to his grandmother, and the residue to A, and both of
them predecease T
T’s whole estate passes in intestacy

More Questions for Lapse

Assume the decedent executed his will in 2017 and that the testator died yesterday unless the question
says otherwise. If I say “survived by,” you may assume that those survivors also survived T.
1.T’s will gave her estate one-twelfth to her sister S, one-twelfth to her brother B, one-third to her
cousin C, and one half to her friend F. T had a net estate of $120,000
a. S predeceased T, survived by one son, the three Start with 3-3.4, because applying 3-3.3(a) then 3-3.4
children of her predeceased daughter D and the four does not apply
children of her predeceased daughter D-2. Everyone B: 1/12 = 10k
else survived. Who gets what? C: 1/3 = 40k
This is the residuary estate because the entire estate is F: ½ = 60k
divided. Everything whatever left S’s 1/12 is shared by one surviving son, D’s three
daughter and D-2’s four children by representation (3-
3.3(a)(2) applies) D=10k  the son get (1/3*1/12),
the rest 2/36 is divided evenly among 7

b. F predeceased T, survived by two children who had
always called T “Aunt T.” T had typically given each
of them $1,000 on their birthdays. Everyone else
survived T. Who gets what?
c. F predeceased T, survived by his two children; B
predeceased T, survived by one child; and S
predeceased T, survived by the issue mentioned in
part (a) above. Who gets what (starting s’ daughter
3-3.4 triggered because 3-3.3 does not apply to friend
+ two or more residuary distribion F’s ½ passes to
and vest in the remaining residuary beneficiaries (B,
C, S) by ratably, in proportions that their respective
interest in the residuary estate bear to the aggregate of
the interests of all remaining beneficiaries in such
residuary estate.
The friend part fails, the part (1/2) will be distributed
to B and C and S  S get 1/12 . B gets 1/12 and C
gets 1/3 
1:1:4 for F’s portion (60k) S gets 10k, B 10k and
Cgets 40k
ESPT 3-3.4 applies : F’s share is paid ratably to the
other. C was supposed to get $40,000, B $10,000, and
S $10,000. So the ratio is 4:1:1.
And anti-lapse saves S’s and B’s shares for their kids.
24
generation by representation) representation start C gets $40,000 of F’s share ($80,000 total)
the second level (issue of the deceased level and B’s child gets $10,000 ($20,000 total).
children of brother’s level) S’s issue share $10,000 ($20,000 total).

2.D’s will gave $50,000 to her “siblings” and the residuary estate (which amounted to $100,000) to her
“issue.” She had two brothers and a sister. B survived her and had two children. B-2 predeceased her
leaving eight children. S predeceased her leaving one child. D had three children. C survived D and
had two children. C-2 predeceased D leaving eight children. C-3 predeceased D leaving one child.
Who gets what?
§3-3.3 applies. Therefore, 3-3.4 is not triggered. 50k portion: class gift 3.3(a) (2) applies,
1/3 given to B, 1/3 would be given to B-2’s eight
3-3.3(a)(3) applies to the class gift other than a children (3-10) by representation, 1/3 would give to
disposition to issue or descendents” go to 3-3.3(a) S’s child(11), if more then by representation. B’s 1
(2) b/c brothers predeceases and 2 are irrelevant (gets nothing).

Issue class are not covered by 3-3.3 go to 2-1.2.

As to the “issue”, falling within the 3-3.3(a)(3)’s
exception  using 2-1,21-2.16
C gets 1/3, the other 2/3 are combined and given in
equal shares to grandchildren 3-1.1.

First level (predeceased level) – per stirpes and the

second level by representation.

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 WILLS
A. Introduction
1. A will is an instrument to take effect on death, that is revocable until death, and that does any one of the
following
2. Will = written/oral declaration, effective on death (revocable in life), dispose of property.
a. Makes a Disposition of Property
b. Directs How Property Shall NOT be disposed
c. Disposes of Testator’s Body or Any Part Thereof
d. Exercises Power of Appointment
e. Appoints a Fiduciary
3. Codicil = 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. §1-2.1
4. Wills are revocable during testator’s lifetime
B. Who can make a Will
1. Testator: Anyone can dispose of their property by will if…
i. They are over 18 years old AND
ii. They are of sound “mind and memory.” EPTL § 3-1.1.
2. Note:
o A will executed by a person under age 18 is invalid even if the person dies years later because
he did not have capacity when the will was executed.
o To be of sound mind, have to know you have property (and what it is) AND dispose of it as you
wish.
o Also have to know who your loved ones are…natural objects of your bounty.
o Also have to know what he is doing with his will & how these factors relate to each other.
C. What Property Can Be Given Away By Will? - §3-1.2 – probated property
1. Real or personal property. Or even an interest in property, i.e., vacation interest in timeshare/copyright
in property/etc.
2. Doesn’t include totten trusts, life insurance, pension accounts, jointly held property. Only “probate”
property can pass by will. those are not probate property
D. Who Can Receive Property Under a Will? - §3-1.3
1. Beneficiary: Anyone can be a beneficiary to a will IF they have capacity to acquire and hold the
property. EPTL § 3-1.3(a).
2. Mentally Incompetent /Minor: does not have capacity, but guardian can hold it until individual
competent or until reach 18, or can set up a trust to hold (can structure how you want this).
3. “Person” defined in §1-2.12, can be natural person, an association, board, any corporation,
governmental agency, partnership or other firm and the state
E. Recommended 4 pack of documents in order to est. competency:
i. Will - take care of property after person dies
ii. Healthcare Proxy - gives someone power to make medical decisions for you
iii. Living Will – expresses person’s interest in ‘critical care”. Includes healthcare proxy
 if you're in a coma, etc. it says what you would like to do if you're in a vegetative
state (only if you are kept alive with machines, cannot self-sustain). include
artificial nutrition, → gets very detailed – requires 2 witnesses
iv. Durable Power of Attorney – gives agent right to do finances (automatic effectiveness) (((i.e., sell your
house, stocks and bonds, buy life insurance, etc.))
F. Four Functions that Statutory Formalities Serve
i. Evidentiary: the will you have before you is the best evidence of T's intent
ii. Cautionary: show that the testator had knowledge of what he/she was doing
iii. Protective: don't want to force the decedent to do something they don't want to
iv. Channeling: efficiency of a system, standardization of language and content - convenient
26
G. How to do a will
A client tells you what they want in their will…you execute it…and then they come in to sign. What happens:
 Let the testator read the will→Make sure he understands what is said. Then staple the will (never
remove the staples)
 If the client doesn’t speak English OR cannot hear…make sure you make proper arrangements.
 Have two witnesses walk into the room. Make small talk so that the witnesses can assess the
capacity of the testator.
 If there is an unusual situation, i.e., child is being disinherited…make sure that there is a memo in
the file so that you can refresh your recollection if the need arises later on. “Would you mind
discussing with the witnesses why you are disinheriting your daughter?”
 Witnesses should stay in the room with the testator the entire time.
o Would you tell the witnesses what this document is?
o Does this document express your wishes?
o Do you want the witnesses to sign as witnesses for you?
 1406 Affidavit  attached to every will is going to be a self proving affidavit. In the process of
probate, have to get testimony of the witnesses that the will was valid. The self-proving affidavit
suffices for this purpose. This document NEEDS to be notarized.
 Should initial the pages before the signature page just to prove that there were no pages that were
inserted.
 Have testator sign the will in the presence of witnesses.
 Attestation Clause  Attesting witnesses say that the person signed the will. Someone should
read this out loud so all the witnesses know what they are doing. Should also read this in the self
proving affidavit.
 Witnesses then sign both will and self proving affidavit.
NOTE: Only execute ONE copy! If you execute two or more, would have to produce all those copies in the
court at the time of probate. If a testator had custody of her own will…and it is missing, there is a
presumption that she destroyed it with the intent of revoking it. BUT if the lawyer holds on to the will and it
is missing, there is no presumption that it was revoked
H. The FOUR grounds for contesting a will
1) Due Execution (aka not properly executed—burden of proof is on proponet)
2) Testator lacked Testamentary Capacity
3) Undue Influence (someone exercised undue influence on the testator)
4) Fraud (someone defrauded the testator)
a. DUE EXECUTION/ EXECUTION OF THE WILL:
1) Non-written:
i. Nun-Cupative [Oral Wills] & Holographic [Written] Wills (3-2.2)
i. Every will MUST be in writing EXCEPT for nuncupative or holographic wills.
ii. Nun-Cupative Will unwritten/oral will MUST be established by 2 witnesses
iii. Holographic Will  entirely written in testator’s handwriting & not executed like
Statute of Wills
iv. Only VALID If made by:
1. Member of armed forces (in service during war)
o Person (civilian) who serves/accompanies armed force during war ((cant just be
on base)
o Mariner while at sea
v. INVALID if:
1. Member of armed forces, upon expiration of 1 yr. following discharge
o Civilian who serves/accompanies armed forces…holographic will expire 1 yr.
from time he stopped serving would need to make a formal will or estate will
pass in intestacy

27
 o Mariner - upon expiration of 3 yrs. From time he made will
2. If person lacked testamentary capacity at time of execution  will continues to be
valid until expiration of 1 yr. from time person regains testamentary capacity
vi. **NY will admit holographic will from another state if in accordance with that state’s
holographic wills law BUT will NOT admit another state’s nuncupative will
vii. SO in NY the only time these types (noncupative and holographic) of wills are
permissible is if we are dealing with a military type situation. OTHERWISE…will
MUST be in writing and must comply with 3-2.1 formalities.
2) Written wills (Due ExecutionBurden of proof (by preponderance of evidence) is on proponent
of the will) –can be typed or handwritten
a. Formal Requirements (must be written): To be a validly executed will…the following
formalities have to be adhered to:
1. The will must be signed by the testator (or by another person at the testator’s
direction and in her presence);
o If testator is too feeble, can have someone sign for them. The person is going
to receive direction from the testator and sign in their presence.
o Crossed Wills: Matter of Stride
i. What happens when a couple signs each other’s wills by accident?
Under NY statute, seemingly we wouldn’t allow the wills to go to
probate. BUT, here, the court said the wills were valid. This is
substantial compliance, and limited to its facts.
2. The testator’s signature must be at the end.
o Testator MUST sign at the end, otherwise it is invalid. (anything under the
signature is thrown out..also after the will is made, anything added to that
same will not be valid)
o Any writing after signature → won’t invalidate previous material except if
will is too incomplete or to give effect to writing before would destroy
testator’s intent
o No effect given to writing after/before signature in will/subsequent to
execution
o Testator is allowed to write “X” if he cant sign properly (i.e. broken wrist) 
also if he needs someone to sig for him, any person who signs the testator’s
name, shall sign his own name and add his address, and will not count a valid
attestation witness. A lack of own signature will invalid the will whereas a
lack of address will not.
3. Testator must declare that it’s his will to 2 witnesses
4. Need at least 2 attesting witnesses(would need 3 witnesses if counting one of the
signing parties)
5. The witnesses must sign their names within 30 days of each other. (no time limit on
signature of testator)
i. BUT…Witnesses CANNOT sign AFTER the testator's death!
6. Must sign & put address [but failure to write address won’t affect validity]
7. Rebuttal presumption that 30 day requirement was met
8. Witnesses don’t need to sign in testator’s presence, but must be at his request
9. No requirement that attorney supervise will ceremony but testator will lose
presumption of formalities were met if attorney is not present
 The procedure of a will does not need to take place in any particular order.
 If the original is lost, there is a rebuttable presumption against using a copy
because a lost orignal indicates that the testator came and ripped it up

28
  Note: Although there is no requirement that an attorney supervise a will
ceremony, the testator will lose the presumption of regularity if the attorney is not
present
b. Witness as Beneficiary (§3-3.2)
a. In the past, had to have a credible witness testify to the will. Anyone who received
property was NOT considered to be credible AND the will would then fail.
b. NY: The fact that an attesting witness is also a beneficiary under the will NEVER affects
the validity of the will. The only consequence is that the disposition to the attesting
witness may be void.
c. §3-3.2 (a)(1) If attesting witness is a beneficiary under the will and there are NOT 2 other
disinterested witnesses  disposition to that witness is VOID
1. You can automatically lose your gift if you don’t have 2 other disinterested
witnesses who did not receive anything under the will  lapse  to the residuary
(if it is given to a friend)
a. i.e., What about the friend is the residuary beneficiary, the rest of
residuary benefiticary get it. If the F is the only residuary
beneficiary  then goes to the intestacy.
2. If attesting witness is a beneficiary under the will and there are at least 2 other
attesting witnesses no problems
d. §3-3.2 (a)(2) Exception to 2 other disinterested witness: if that witness’s testimony is
necessary to prove the will either by affidavit or in person (if interested one’s testimony is
required in the probation)
1. Usually, a will will be proved to be effective without testimony b/c self-prove
affidavit or not contest
2. If the case is contested, and the witness is called in by the court  lose it even if
there are two other disinterested witnesses
e. §3-3.2 (a)(3) But if he is a distributee of descendent, This witness-beneficiary is entitled to
the lesser of either:
1. His intestate share, or
2. Disposition made to him under the will
3. Theory: no reason to testify dishonestly if getting something larger under
intestacy
b. Following functions of due execution which protects testator & his intent:
i. Evidentiary– will gives best evidence of existence/content of testator’s directions
ii. Cautionary – some indication that directions were not casually arrived at
iii. Protective – reason to think directions were product of testator’s free choice
iv. Testamentary Capacity - mental capacity to understand property owned, whose it’s
being given to & state of family relations
v. Channeling Function – level of uniformity/formality to channel all funds
Question on Beneficiary Witnesses
T’s will gave $100 to her friend A and the residuary estate to her friend B.
a) If A and the disinterested X served as witnesses, B would get the whole estate.
who would get what? Because A is the beneficiary witnesses and under 3-
3.2 beneficiary witness’s portion is invalid if he/she
does not have two other disinterested witnesses.
If B and X served as witnesses, who would get A would get $100, and the residue would pass in
what? intestacy.

T’s will gave $100 to her daughter A and the residuary estate to her friend B.
T’s estate was $400 and she was survived only by her daughter A and her son S.
If A and the disinterested X served as witnesses, A get £100 as she is distributee of the intestacy
29
who would get what (exception to 2 disinterested witness requirement), B
gets the residue
Now assume that T’s estate was $100 and she was A would get $50 and B would get the rest.
survived only by A and S.

b. TESTAMENTARY CAPACITY Burden of proof (by preponderance of evidence) is on proponent

of the will
o BOP (burden of proof) → on proponent! Has to prove that the testator was of sound mind at the
time of the execution of the will (only comes up when will is contested) by mere
PREPONDERANCE OF THE EVIDENCE.
o Testamentary Intent: question of fact if Testator intended to do a will and can only be rebutted with
clear & convincing evidence
o Testamentary Capacity: whether T had capacity (knowledge & capability to understand) to make a
will -- determined at time of will execution. [18 years & mental requirement] capable of
understanding in a general way
i. Must know what you have
ii. Must know who your loved ones are (if the woman didn't know that she has children, then
she can't do a valid will)
iii. Must know what the will does (what you’re doing with your property)
iv. Must be able to connect them with each other
o NOTE: Less capacity is required to execute a will than any other legal instrument. An adjudication
of incapacity and the appointment of a committee or a conservator is evidence of lack of
testamentary capacity; HOWEVER, it does NOT justify a directed verdict. Even if the testator had
mental problems, the court could find that the will was written during a lucid interval.
 PRESUMPTION – If you were adjudged incompetent, there is a presumption that you
will remain incompetent!
o When is Testamentary Capacity Determined?
o At the time of execution! If a person was usually of sound mind and memory BUT
was NOT so at the time of execution, (i.e., drunk)…then the will is invalid! A person
has to be 18 years or older.
o Who Can Testify as To Testator’s Testamentary Capacity
i. The attesting witnesses are permitted to testify as to whether the testator had testamentary
capacity…ORDINARY PEOPLE ARE NOT! WHY? - Attesting witnesses were there
specifically for assuring that the person had testamentary capacity.
ii. NOTE: Ordinary people CAN testify as to a testator’s behavior in general (actions and
statements of the testator within their observation); HOWEVER, cannot testify as to a
person’s testamentary capacity UNLESS they are attesting witnesses or experts (but
sometimes experts aren’t given that much thought b/c they were not there to see how the
testator was acting)
o Insane Delusion
i. Although a testator may otherwise be of sound mind, a will may be invalid if it is the
product of an insane delusion, i.e., a persistent belief in supposed facts that have no real
existence except in the testator’s perverted imagination, and that are against all evidence and
probability.
ii. Elements;
1) Must find that feelings are unfounded in fact
2) That these beliefs were the reason the decedent excluded his natural objects of
bounty from his will.
3) Feelings must spring up from a diseased condition of mind.

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 iii. A person under an insane delusion may believe that one of his kids is trying to hurt him OR
spreading rumors about him. Testator may believe that husband or wife are being
unfaithful…when in fact they aren’t.
iv. NOTE: In a normal case, the lack of testamentary capacity invalidates the ENTIRE will;
however, in an insane delusion case…only the part that relates to the insanity is invalidity.
 Example: T came to believe that there were people living in the trees on his farm.
His will devised 40K so they could be fed and devised the residue of his estate to his
wife, W. Is the 40K devise valid?
i. NO! Here, the court will only take out the part that was insane and leave
the rest intact.
ii. BUT what if T left the 40K to feed the people in the trees and the rest to the
Nature Conservancy? – NOW…its hard to tell which is the insane part. The
whole thing might be insane…but it might not be. This illustrates how
sometimes it may be hard to tell
o Conditional Wills: A conditional will is one that expressly provides that it shall be operative ONLY
IF some condition stated in the will is satisfied. However, language that reads like a condition may
be interpreted by the court as merely expressing the motive or inducement for making the will.

c. UNDUE INFLUENCE Burden of proof is on the contestant to show undue influence

(circumstantial evidence)
o Influence is considered undue if it amounts to true moral coercion that destroys the testator’s ability
to act independently. The contestant MUST prove the following:
i. Existence and exertion of an influence,
ii. Effective operation of such influence so as to subvert or overpower the mind of the testator
at the time of execution of the will, AND
iii. Execution of a will would not have been executed BUT FOR such influence.
a. If confidential relationship with testator, inference of undue influence can only be
drawn if objectant can show confidential relationship & Other factors [attorney not
present, etc.]
b. Undue Influence is Proved By Circumstantial Evidence BUT MUST BE of a
Substantial Nature
o Undue Influence-- true moral coercion that destroys testator’s ability to independently act. Testator
acts contrary to his own wishes because he cannot refuse/resist. (force, flattery, threats, free will
overborne). It’s a pattern of behavior over period of time.
o Two Types: (i) Duress – physical threat/coercion or (ii) Moral – verbal undue influence
o NOTE: Influence is NOT undue unless the free will of the testator is destroyed and a
testament is produced that expresses the desire of the one exerting the influence, rather than
the desire of the testator!
o The following FOUR things can be considered…
 Susceptibility  Is the testator susceptible to being unduly influenced?
 Opportunity  Did the wrongdoer have the opportunity to influence the testator?
 Disposition to Influence  This goes to the character of the wrongdoer. The court
characterizes this as the desire to obtain the estate coupled with the willingness to do
something wrong.
 Coveted Result  This almost always means that the influencer gets stuff and the
other people would get less than what you would have expected (something
unnatural!)
o Bequest to Person in Confidential Relationship Who Was Involved in Procuring Will

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 i. If a will makes a gift to a person (i) who was in a confidential relationship with the
testator AND (ii) who was directly involved in drafting the will, there is an
INFERENCE (not presumption) that the gift was the product of undue influence!
1. NY Rule: Inference can only be drawn if can show a confidential relationship
and some other factors.
 Susceptibility, opportunity, character of accused, and result.
2. Adverse Inference: The existence of a confidential relationship, without more,
does NOT raise an inference of undue influence. There must be some evidence
that the person was involved in procuring or drafting the will. Then the jury is
allowed to “INFER” that the person who had the confidential relationship exerted
influence on the testator.
3. How Does Confidential Relationship Arise? → There are two ways that a
confidential relationship arises:
 Arises as a matter of fact – a person who has insinuated themselves into your
life, either because they are a caretaker or a friend. (Encompasses people
who live together and who take care of each other). TC 27:00 1/26b
 Arises as a matter of law – Priest, husband & wife, attorney & client, doctor
& patient, nursing home owner/director & patient, and anyone in a fiduciary
relationship (guardian).
o Lawyers Named as Beneficiaries in Wills
o If attorney drafts will & receives something from it (like a gift), presumption of undue
influence!
 Attorney can rebut presumption by producing an affidavit to show it was a benign
gift
 Putnam Affidavit – Must be submitted when the attorney receives something under a
will they drafted. If parents ask you to do their will and leave everything to each
other…Putnam is simple…one page. HOWEVER, in any other situation, the Putnam
gets complex and its easier for you to tell the client to find another attorney.
o If attorney is nominated as executor of will, attorney must get in writing (signed by testator
& witnesses) that he disclosed to his client that: (Under §2307(a) of the surrogates court
procedure act)
1) Any person, not just an attorney, can be named executor,
2) Executors are entitled to statutory commissions, AND
3) The attorney also will be entitled to attorney’s fees for any legal services rendered to
the estate.
 NOTE: Client MUST sign a written acknowledgment of the disclosure in a form
set out in the statute (and two witnesses required). Legislature now says that the
acknowledgment has to be separate from the will.
 A lot of attorneys were then putting this disclosure right in the will. Three
out of four courts have held that this CANNOT be in the will (testator
feels that it is boiler-plate).
4) Absent compliance with the requirements, the commissions of an attorney who
serves as an executor shall be 1/2 the statutory commissions to which such attorney
as executor would otherwise be entitled pursuant
o Personal representative of an estate should NOT be prevented from raising a negligent estate
planning claim against attorney who caused harm (attorney has liability for estate planning) –
only executor can bring this suit though (not the beneficaries)

d. FRAUD:

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 o Fraud: Where the execution of a will or the inclusion of a particular gift therein is the result of
fraud, the will or the particular gift is invalid. Fraud consists of making that which is false
appear to the testator to be true, thereby affecting his will. The elements of fraud are:
a. Elements:
i. Lie (False Representation)
ii. Knowledge that it was a lie (not just a mistake)
iii. Intention that the testator relied on it
iv. Testator does rely on it.
o Burden of proof is on contestant  must show clear & convincing evidence a false statement
was made to Testator that induced him to make a will disposing of his property differently than
he would have if he had not heard the fraudulent statement.
o Two Types of Fraud: - Occurs at a specific time
(i) Fraud in Execution – testator is defrauded about nature or contents of documents he’s
signing.
(ii) Fraud in the Inducement – testator is intentionally misled into forming a testamentary
intention that they would otherwise not have formed.
 False representation is made, person making it has knowledge it’s false & intends
testator to rely on it and testator does rely on it
o Constructive Trusts- equitable remedy you seek in court when person commits a wrong and it’s
unjustly enriched – court can impress on the money that’s involved so that it goes to person who
deserves it

JOINT & MUTUAL WILLS

A. JOINT & MUTUAL WILLS

i. Joint Wills: single instrument executed by 2 people that they intend to operate as the will of each ]Not
Favored] must be probated twice, leads to litigation, no marital tax deduction
 Requirements:
i. Must be in writing and signed by the party to be charged § 13-2.1(a)
ii. Must expressly say…
a. That it is a joint will
b. That it is intended as a contract (e.g. We declare this to be our joint will and is
forever binding and shall not be revoked)
 2 Situations under which an irrevocable joint will can be changed:
o (1) Both parties are allowed to release each other from the contract which states that the
joint will is irrevocable  the second decedent is free to change his will after the first
decedent's death. BUT the release must be done during lifetime, but requires consent
from both parties.
o (2) Revocatory Effect of Divorce, Annulment, or Nullity…to Former Spouse [§5-1.4]
 A separation agreement, divorce– exonerates joint will [they release themselves
from all contracts they executed]  Revocation, in effect, acts as if the former
spouse had predeceased
 Divorce automatically revokes testamentary dispositions to spouses, life insurance
policies for spouses, TODs (stocks held for the benefit of), Totten trusts,
etc.§5-1.4(a). [Black Letter]  divorce will also make you and ex-spouse “tenants
in common (if one party dies, their half/share passes under their will/intestecy”
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  Joint will can be reinstated by testator’s remarriage to former spouse
o Otherwise, the beneficiary under the original parties can sue the one who change the will
after his/her spouse dies.
 Agreements Involving K to Establish a trust, Make Testamentary Provision [§13-2.1]
o Statute of Frauds: following must be in writing & signed – K to establish a trust, k to
make testamentary provision, any kind of promise by personal representative to answer
for debt/default of his decedent
o To be enforceable & irrevocable, joint will must indicate (i) it’s a joint will & (ii) there is a
K between parties so it’s irrevocable
i. Perfect joint will language: “We declare this to be our joint will and we have
agreed upon the foregoing disposition of our property which shall be forever
binding on us and shall not be revoked by either of us or the survivor”
ii. Mutual Wills: separate wills, executed by each of 2 person, containing similar provisions. Execute the
same will BUT 2 separate documents that are the same [MORE COMMON].
a. Majority rule: Clear & Convincing Evidence required to show that wills were meant to be
irrevocable/ a K, & not simply that they were reciprocal (Junot v. Estate of Gillian: the fact that the
parties executed a “mutual” will on the same date is insufficient to establish a K. Presumption that
existence of mutual wills does not create a contract.
i. NEW YORK: If you mean it to be irrevocable you must SAY IT!! (i.e. this will is
irrevocable”)  NY requires, under 13-2.1(b), that the will say that it is a joint will AND
that those provisions are intended to be a K btw the parties. TC 15:10 2/9b
b. Like joint will, unless the testators expressly promised to keep their mutual wills in effect, they are
both free to revoke their mutual wills. (Schloss v. Koslow, where husband made a new will after
the wife died, he was within his legal rights to do so, and the court refused to impress a
constructive trust)
iii. Example 1 - Rubenstein v. Mueller, 19 NY2d 228: H and W were married for 50 years. They executed
a joint will which provided as follows:
i. Note: Prof doesn't like the outcome here. Also the outcome would be different in NY b/c NY
requires, under 13-2.1(b), that the will say that it is a joint will AND that those provisions are
intended to be a K btw the parties.
 “We declare this to be our will. The estate of the first to die is hereby bequeathed to the
survivor. At the death of the survivor of us, or if we die simultaneously, the estate of the
second decedent or of both of us is hereby bequeathed to X.” H and W owned a house by
the entirety, which had been paid for exclusively by H’s earnings.
i. A year later W died and shortly after her death H’s second cousin, C, came to New
York from Europe to take care of him. A year later H and C were married and H
executed a new will, revoking his prior will and leaving his whole estate to C.
Another year later he executed a deed conveying his house to himself and C as tenants
by the entirety. H died the following year owning bank accounts and securities. What
rights, if any does X have? TC 10:22 2/9b
a. X can argue this was a joint will and as such the provisions were intended to
constitute a contract between the parties and H cannot revoke. “We” is a
first person plural pronoun and "declare" is a present tense verb. By use of
these terms, it implies a contractual obligation to keep the will in effect after
one dies. H could not change his wills because it would be a violation of
their implied contract. Thus, niece has the right to the estate.
b. Note: BUT we always use present tense in wills. And we use “we” because
what else are you going to use when dealing with a joint will? On a pure
analytical ground, it seems as if there is something else at work here. The
court was probably outraged at what the husband did and wanted to find a
reason for its holding…implied contract!
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 iv. Example 2: H and W entered into a valid contract to make a joint will. The will provided that upon the
first spouse’s death, the estate would go to the surviving spouse, and upon the surviving spouse’s death,
everything would go to H’s children and W’s children. H and W later divorced. In their separation
agreement each relinquished the right to the other’s property and released the other from any contracts
they had executed. When H died, he had not changed his will, and his children and her children
therefore shared his estate. W then wrote a new will leaving everything to her children (omitting H’s).
Do his children have any rights? (Estate of Coffed, 387 N.E.2d 1209 NY 1979).
a. No. When a couple divorces, all bequests in their wills to each other become void (EPTL 5-1.4).
So the wife does not get her bequest. The husband’s children and her children share the husband’s
estate.
b. Their separation agreement exonerated each other from all contracts, including their contract to
keep the wills irrevocable.
 Therefore she was entitled to revoke her will and write another will leaving her estate
to her children only.
Question on joint wills
H and W married when they each had two children. They execute a joint will that provided:
We declare this to be our will. The first to die hereby bequeathes the whole estate to
the survivor. At the death of the survivor of us, or if we die simultaneously, the estate
of the second decedent or of both of us is hereby bequeathed to all four of our
children in equal shares.
W died, and shortly after her death H revoked his prior will and left his whole estate to his two children,
excluding hers. When H dies, what rights do W’s children have to part of his estate?
This will doesn’t satisfy the 13-2.1 statute of frauds requirement that would force H to keep the
joint will in effect until his death. (remember two requirements must be met : (1) signed and in
writing and (2) expressly indicate this is a joint will and this is a contract to keep the will
irrevocable.
That is, the will doesn’t announce itself as a joint will and doesn’t state that the couple contracts
to keep the will irrevocable.
H was therefore entitled to revoke his will and write another will leaving his estate to his
children only

SIMULTANEOUS DEATHS

A. Simultaneous Deaths [2-1.6]  applies to wills & intestacy

 Rule: a person who is not shown by clear and convincing evidence to have survived another by
120 hours is deemed to have predeceased the other for purposes of distributing that person’s
property - EPTL § 2-1.6 (This is a default provision and can be written around. )
 [§2-1.6 (a)(1)] If two people name each other as beneficiaries under their respective wills, if they
both die within 120 hours of each other, they will be treated as if they had predeceased each other and
therefore their bequests will go to their alternative beneficiaries.
o If two people name each other as beneficiaries under their respective wills, if they both die
within 120 hours of each other, they will be treated as if they had predeceased each other and if
they do not have any alternative beneficiaries in their wills, then it goes by intestacy (§4-1.1)
 [§2-1.6 (a)(3)] Alternative beneficiaries who die at the same time
o Property shall be divided into as many equal portions as there are alternative beneficiaries
1. If alternate beneficiaries die within 120 hours of each other, then the gift is divided by the
number of alternate beneficiaries, then distributed to their issue through the dead beneficiary.

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  E.g., Don the Decedent gave his entire estate to his sister Sally, or Bart, or Barry. All
3 siblings incredibly and tragically died simultaneously in a crash, each survived by
three children. Who is entitled to D’s estate? Each set of nieces and nephews will
share 1/3 of the estate (1/9 each).
2. Under (b)(1), can override statute if will explicitly deals with simultaneous deaths or deaths
in a common disaster and the language is operable under the facts of the case.
3. Under (b)(2), can expressly indicate that an individual is not required to survive an event,
including the death of another individual, by any specified period or expressly requires the
individual to survive the event for a specified period.
 Purpose: get property to right beneficiary, less administration costs, joint ownership of property
o Average person would rather have property go to their own distributees/beneficiaries rather than
other person’s [if don’t know who died 1st, treat it like decedent survived other]
o [§2-1.6 (c)] “Governing instrument" means a deed, will, trust, insurance or annuity policy,
bank account in trust form, security registration in beneficiary form (TOD), pension,
profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power
of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument
of any similar type
i. I.e: If W fails to name an alternative beneficiary for life insurance policy…Life
insurance proceeds for which no beneficiary is named becomes part of the insured's
estate… therefore, if she was intestate, we'd have to know who her intestate
beneficiaries are. If she was testate, we'd give to whom she left her property to…
ii. Note: Totten Trust Bank Account, is where the depositor puts her name on it, followed
by the words, "in trust for" someone else. This gets around all the formalities required
to transfer property at death.
 Intestacy or statutory marital rights and in order to take under that, must survive the person by 120
hours otherwise deemed to have predeceased other [person who has right to elect/intestacy cannot
prove to survive other by 120 hours, then deemed to have predeceased other]
 Property goes to alternative beneficiary
 Law Does NOT Apply If:
1) The will or trust provides otherwise; or
2) Applying it would violate the rule against perpetuities; or
3) Applying it would duplicate dispositions or cause a disposition to fail; or
4) Applying it would cause the property to escheat to the state; or
5) Surviving spouse exercised her right of election & then died within 120 hrs

B. Examples:
1. A and B had mutual wills: Each left the entire residuary estate to the other, and if the other failed to
survive, to their children 1 and 2. A and B died simultaneously in a boating accident. Their wills were
silent on simultaneous death. They died survived by two children, 1 and 3, and two grandchildren, G-1
and G-2, from child 2, who predeceased them. How are their estates distributed?
A’s estate is distributed as though B had predeceased him, and B’s estate is distributed as
though A predeceased her.
Accordingly, both estates pass to 1 and 2 in equal shares. Because 2 predeceased, leaving
issue surviving A and B, her issue take her share.
That is, 1 gets one-half of both estates, and G-1 and G-2 get one-quarter each of both
estates.
Authority? Subparagraph (a). TC 13:44 2/14b
2. X owned a house worth $1,500,000. Y had securities worth $250,000. X’s will gave everything to Y, or if
he predeceased, to X’s friend F. Y’s will gave everything to X, or if she predeceased, to the Nature
Conservancy. They died simultaneously in an airplane crash. How should their estates be distributed?
F gets the 1,500,000 for the house and the Nature Conservatory gets the securities.
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 3. X and Y owned their home as joint tenants with a right of survivorship. Neither had a will. They had no
spouses or children, and both were survived by their parents. They died simultaneously. Who gets the
house?  Their parents each get ½ interest in the house.
4. X had life insurance on his life in the amount of $1,000,000. He designated Y as the primary beneficiary
and their children 1 and 2 as alternate beneficiaries. X and Y died simultaneously in an accident. Who
gets the life insurance?
1 and 2 split the life insurance because 2-1.6 was written around in K.
5. X had a Totten Trust bank account payable to Y upon X’s death. X and Y died simultaneously in a car
crash. Both were intestate and each left one child surviving. Who gets the money in the Totten Trust
account?
 Goes to X’s child
 Authority? Subparagraph (a) b/c it says "Where the title to property or the devolution
thereof depends upon the priority of death..." Totten Trust bank accounts DO depend
on the priority of death. And anti laspse does not applies to TOD
6. T made a will with the following provision: I give my books to my sister, A, if she survives me. If she
predeceases me, I give the books to my sister, B, if she survives me. If she predeceases me, I give the books
to my sister, C, if she survives me. If she predeceases me, I give the books to my sister, D, if she survives
me. I give my residuary estate to my three sons in equal shares.” Implausibly, T and her four sisters died
simultaneously in a crash, each survived by three daughters. Who gets the books?
 Divide it into quarters and divide that quarter into thirds. Triggers anti-lapse. 2-1.6(3)(a)
seems to supersede rule that language in the statute causes the gift to laps
 A’s, B’s, C’s and D’s sons all take an equal share of the books.
7. D died without a will. He had a wife and three children. The oldest child died last September, leaving two
children. The second child survived D and has one child. D and his third child died simultaneously. The
third child had four children. D’s estate was 150,000. Who gets what?

 W gets $100,000 under 4-1.1(a)(1) ($50,000 plus half of the remaining $100,000). The
remaining $50,000 passes to D’s issue by representation. And for this purpose child #3 is
deemed to have predeceased D under 2-1.6(a)(1). Child 2 gets 1/3 of $50,000 ($16,667). The
other two shares are combined (2/3, or $33,333) and divided equally among G1, G2, G4, G5, G6
and G7) ($5,555.50 each). G3 gets nothing because her parent survived

ADVANCEMENTS

A. Advancement: is an Irrevocable gift Intended by the donor as an anticipatory distribution in complete

or partial satisfaction of the interest of the donee in the donor’s estate, either as distribute in intestacy
or as beneficiary under an existing will of the donor. §2-1.5(a).
1. Proof: No advancement shall affect the distribution of the estate of the donor unless proved
There must be EITHER (§2-1.5(b)) …
a. A writing contemporaneously acknowledging the advancement signed by the donor OR
b. An acknowledgment of the donor’s intention by the donee. If neither has signed such a
writing, the lifetime transfer is simply an additional gift that does not affect the will or
intestate distributions.
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 i. e.g., if mother leaves her son 100k in her will and during her lifetime gives him
$50,000 for a down payment on a house, and there is no writing, when his mother
dies, son will receive the entire 100k left to him in the will because the 50k was not
formally considered an advancement.
ii. e.g., In the example above, if T wrote on a note, signed by the T, "this will reduce
your will bequest by 50k." This would be a valid advancement.
c. Professor says the donee could also walk into court after the death of testator and declare that
he got an advancement even though no writing under (a) or (b). (how stupid the donee is)
2. Calculating the distribution (§ 2.15(c)):
a. When there is a writing, the advance is part of estate for calculation purposes.
i. Note: IRREVOCABLE GIFT = donee doesn’t have to pay it back.
ii. Add the amount back into total estate (if the value advanced smaller than net
estate)
iii. If the net estate is worth less than what the advanced person received then don’t
add the advancement back in
a. EX: Ex: D was advanced $200,000. There are 4 kids including D. The net estate
is $10,000.  don’t add in, three kids each gets $3,333.
b. If the advance is less than the donee’s share: the donee or his successors in interest can take
their share MINUS the advancement
i. An issue is not a successor in interest if everyone in the advancer’s generation has
predeceased the testator.
c. If the advance is equal or more than the donee’s share: the donee or successors in interest
cannot take.
i. The other distributes or beneficiaries get their ratable share of the actual net estate.
d. E.g. Will leaves estate in equal shares to her D and 3 S’s, if she advanced $100 to D (with a
contemporaneous writing), and had $400 at death, the advance is treated as part of estate 
$500. Each child would be entitled to $125. D, having already received $100, would get $25,
S’s- $125 each. If T advanced D $200, leaving $300 at death, D would get nothing more and
the sons would each get $100.
3. Calculating the advancement: The value is calculated at the time of death. (§2-1.5(d)(2)
a. Advancement may be adjusted out of property of donor as is equitable.
b. Advancement has value at which it is appraised for estate tax purposes, or if not included in
taxable estate, value at which it would have been appraised.
i. E.g. I advance to my daughter a house worth 200K, when I die, the house is worth 1M.
She will be charged with 1M in the calculated advancement, unless T says I want it to
reduce your bequest by 200K.
ii. E.g. I advance XYZ stock worth 25K to S. S sells it to start business. Calculate the value
of advancement at date of death, not value of what he sold/bought it for. If stock had
declined, use reduced value.
**Exception**: cash is not adjusted for present value.
c. Nothing shall increase/decrease share of surviving spouse under election § 2-1.5(e). The spouse
can elect against an advancement made in the last year of the decedent’s life, or gift on death
bed. Falls within 5-1.1-A only if authorized by (b)(1)(A) or (b)(1)(B). if you see decedent
made the advancement within the last 12 months of his life, then the surviving spouse will be
able to elect against it.
4. Advancement examples:
a. D made a will giving her entire estate to her children in equal shares (Daughter, S-1, S-2, & S-3).
Because her child S-2 had a low-paying job, D advanced $200,000 to him, along with a writing
that announced that S-2’s share of D’s estate should be accordingly reduced. When she died, D
had a net estate of $1,800,000 (that is, she owned $1,800,000 after all her debts, taxes, and

38
 administration expenses were paid). Her husband H did not elect against the will. How is the
estate distributed?
 First, add the advancement back to 1.8 million, which equals 2 million. §2-1.5(c)
 Then divide by 4, equals 500k. Each child gets 500k, but S-2 gets only 300k b/c of
her prior advancement. §2-1.5(c)
b. Assume the same facts as in #1, except that when D died, her net estate was $10,000 instead of
$1,800,000.
 Total estate equals 10k + 200k = 210k.
 Then divide by 4, equals 52.5k each. B/c S-2 has received more than that amount, she
isn't entitled to more. Daughter, S-1, & S-3 get 3,333k each. §2-1.5(c)
c. Assume the same facts as in #1 (that is, that when D died, her net estate was $1,800,000), but now
assume also that S-2 predeceased D, leaving two children (A & B).
 Same analysis as in Example 1. A and B share $300,000. They are S-2’s “successors in
interest" under §2-1.5(c)
d. Continue with the same facts, except now assume that D’s will left $50,000 to H and the residuary
estate in equal shares to her children. H decided not to elect against the will.
 The residuary estate, to be distributed to the children in equal shares, now equals
$1,950,000. Each child is entitled to $487,500. S-2 received $200,000, so he gets
$287,500 more. The other three children get $487,500 each.
e. D executed a will in which he gave his cooperative apartment to his father, F, $200,000 to his
sister, S, and the residue to the Nature Conservancy. Later, because his sister experienced some
sad reverses, he advanced $50,000 to her (with the contemporaneous writing contemplated by
EPTL 2-1.5). By the time he died, F and S had both predeceased, survived by sons B and N
respectively
a. This illustrates a case where you don’t have to use the advancement to calculate people’s
shares.
b. The apartment meant for F lapses (the anti-lapse statute, EPTL 3-3.3, does not salvage it
because the gift was to the father, not to issue or sibling). Therefore, the residuary
beneficiary gets the co-op.
c. The $200,000 bequest to S passes to her son, N, reduced by the $50,000 advancement. N
gets $150,000.
d. The Nature Conservancy gets the rest.
f. D died yesterday without a will. She had three children surviving, and two grandchildren from a
predeceased daughter. Last year she advanced her first son $500,000 (supported by a
contemporaneous writing). At her death she had $300,000 net.
a. First, 300k + 500k = 800k.
b. Second, 800k divided by 4 (children {3 living + 1 predeceased}) = 200k each. B/c son had
500k advancement he is taken out. Thus 300k is divided amongst 3, or two surviving
children get 100k, third surviving child gets nothing b/c of his advancement, and the two
grandchildren of the predeceased child get 50k each (100k by representation split by two
people).

Question on advancement
1.T’s will gave her entire estate to her children (a 300k + 2100k = 2400k (not 2100/2-300)
daughter D and a son S) in equal shares. Because S 2400/2=1200k to the daughter
had a low-paying job, T advanced $300,000 to him, 1200-300k = 900k to the son
along with a written statement that S’s share of her
estate should be reduced by that amount. When she
died, T had a net estate of $2,100,000 (that is, she
owned $2,100,000 after all her debts, taxes, and
administration expenses were paid). Who is entitled
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to what?

2.Assume that when T died, her net estate was
$150,000 instead of $2,100,000
3. Assume that when T died, her net estate was
$2,100,000, but now assume also that S predeceased
T, leaving two small children surviving T
4. Now assume that T was married, that her will left
$500,000 to H and the residuary estate in equal
shares to her children, and that H did not elect against
Because advancement is larger than estate. Add 300k
to 150k, each theoretically gets 225k. and Son get
nothing (225k-300k) and daughter gets 150k.
therefore, Son gets 0 and daughter gets 150k. EPTL
2-1.5(c).
Residuary disposition 900k to the son and
the rest: 3-3.3 anti-lapse applies b/c it is made to the
issue  to the two small children of the daughter (2-
1.5(c) “the done or his successor in interest…”
1. add 300k  2400kl
2 giving H 500k  1900k left
3. son get 950-300 =650k

the will
5. T’s will will gave her house to her mother, M, $100k to her brother, B, and the residue to the Nature
Conservancy. Later, b/c her brother become impecunious, T advanced $50 k to him (with the
contemporaneous writing contemplated by 2-1.5. ) by the time T died , M and B had both predeceased. Surved
by daughters S and N respectively.

The house to M lapses (3-3.3 does not salvage it ) because M predeceased the T. therefore, conservative gets
the house. The $100,000 bequest to B passes to his daughter, N (3-3.3), reduced by the $50,000
advancement. N gets $50,000. The Nature Conservancy gets the rest.

6. T died yesterday without a will. She had two sons surviving and two grandchildren from her predeceased
daughter. Last year she advanced S–1 $500k (meet criteria) at her death she had a net estate of $300k.

40
Add the $500k advancement, 800k in total, each get 1/3, son gets nothing (theoretically 500/3<advancement)
so keep 500k but get nothing from estate, then S-2 gets 150k and A and B get 150k/2 each. [Theoretically,
each child is entitled to $266,667 in intestacy, and each grandchild is entitled to $133,333, Since her son
received more than $266,667, he gets nothing more. S-2 gets $150,000, and A and B each get $75,000.]
7. T, a widowed NY, left her estate her issue by representation. She later advanced $300k to her son S-1, S-1
predeceased T, leaving a child surviving T. Tragically and unaccountably, both of T’s other children also
predeceased her, leaving issue surving her, leaving S-2’s two kids, D’s two kids surviving them.

(1) Disregards the definition of by representation and calculate it as under 2-1.5, then add the $300,000
advancement to the $1,200,000 net estate ($1,500,000). Each grandchild is entitled to $250,000. S-
1’s child has already received $300,000, so he gets nothing more. The remaining 5 grandchildren
get $240,000 each.
(2) If observe the definition of by representation, start from the nearest generation which has surviving issues,
then one could argue that grandchild 1 is not his father’s successor in interest, because under the
by-representation statute (1-2.16), each of the grandchildren takes in his own right, not through his
parent. In that case, each grandchild gets $200,000.

REVOCATION OF WILLS

REVOCATION OF WILLS
A. Introduction
i. General Rule: A will is freely revocable up to testator's death → freedom of testation
ii. Intent Requirement: The testator MUST intend to revoke - EPTL § 3-4.1
B. Two ways to revoke
i. Revocation/alteration intended by testator can only occur by:
a. An Entire Will or Any part may be revoked/altered by writing instrument by either:
1) By another will
2) By a writing, by the testator, clearing indicating an intent to revoke or alter,
executed with the formalities of execution and attestation.
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 b. Part of will cannot be revoked by act; In the NY, to revoke partial will, a testator must use
writing instrument and executed with the formalities of execution and attestation; or codicil,
which also meet relevant requirements
c. Be careful, an accidental destruction fails the intent requirement and does not revoke the will.
d. Be careful, the one must have testamentary capacity to revoke the will .
C. Details on Two ways to revoke
a. Only Entire Will may be revoked by ACT (NY states you cannot revoke part of a will via act
—majority says you can) – Act cannot revoke a will partially
o An act such as burning, tearing, cutting, cancellation, obliteration, or other mutilation or
destruction (performed by:
 (i) testator. Or
 (ii) another person in presence & testator’s direction [proved by 2 witnesses,
neither of whom performed revocation act])
 cannot call lawyer to rip it up  mail the original copy to the testator let
him to destroy it.,
o Crossing out every line of will serves to revoke the entire will if the facts show that
intent. (i.e. crossed out every single line of will in pencil, even thought it could still be
read)
 CANNOT revoke just a part of a will by crossing out portions (more strict
than many other jurisdictions).
 Note: if in Kronague, the testator wrote it across the text it may have
been a valid revocation
 However, if cancelled clauses were in fact substantial portion of the will,
then the court would deem the act revoke the whole will !!!!
o EXCEPTION: If the cross outs make provisions illegible (white out or scissor), and
the remaining provisions can stand alone, then the court might probate the will
without the provision. Not supposed to allow partial revocation but with a huge estate
they may assume that other provisions should be as T intended instead of intestate.
Menchel/Kent
o Crossing out provisions + writing in the margins is NOT generally a valid revocation.
o If a statement of cancellation is properly executed, can be given effect as a
revocation by subsequent will regardless of whether the statement of
cancellation touches any of the actual words of the will
 BUT You can SUPPLEMENT a will by writing in the margins if you adhere
to the formalities of making a will (see Kronauge v. Stoecklein)
 i.e. If you write out of the margins w/o touching any of the words & you
have two witnesses = a valid revocation b/c it is essentially a new will,
even if it is written on the old will
b. For partially and entire revoke by writing or by another will
i. Executing another will (express revocation) (express revocation)
1. Usual method is to execute a new will that states, “this is my last will and testament
and I hereby revoke all earlier wills and codicils thereto” - do state the intent to
revoke !!!!!!!!!!!
2. Issuing a writing indicating an intention to alter or revoke
3. Must be executed with the formalities of a will and attested to
a. If you write on a blank side portion of the original will that you intend to
revoke it & you do the requisite formalities, that will be valid in NY (this
different from Kronauge case as it is writing in the margin and not executed
and attested in formality)
ii. Implied revocation  when a previous will is revoked by an “inconsistent” subsequent will
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 1. Typically occurs when the testator, without the aid of an attorney, executes a will
that does not include an express revocation clause
2. NOTE: if testator executes a second will that does not expressly revoke an earlier
will, insofar as possible – the 2 wills are read together  two wills can stand at the
same time
3. The second will is treated as a codicil / supplements the prior will (Restatement
approach, but sometimes hard to apply & courts will have to make the decision)
4. Exception: if later will makes a complete disposition of the testator’s property  it
revokes all prior wills b/c it is presumed that the later will intended to replace earlier
will
5. RULE: if you have a will, then later a valid, effective codicil – if the codicil doesn’t
address something that is in the will, and enforcing that provision from the will
would not contradict what is in the codicil  should enforce that provision of the
will + enforce the codicil
a. Ex: Will that says “everything to A” – then you execute a later will that says,
“everything to B”
i. Yes, earlier will is revoked b/c everything is being disposed of
c. Wills (including A Holographic/nuncupative) can be revoked/altered by nuncupative
[established by 2 witnesses] declaration or holographic declaration [by instrument written in
testator’s handwriting, not executed in formalities]
d. Revocation of a will also revokes codicils
i. Codicil can revoke a part of entire will but re-dates entire will (same formalities)
ii. BUT revoking a codicil does NOT revive earlier will  revoking the codicil does NOT
revoke the will EXCEPT the parts which it pertains to

D. Rules for whether a new will (without a revocation clause) revokes only part of a will or completely
supplants it:
a. If the new will provides for a complete disposition: there is a presumption that it revokes the old will.
i. Unless the presumption is rebutted by clear and convincing evidence, the earlier will is revoked.
ii. In a new will, Turano says to always put in “I hereby revoke my old will and all prior will.”
b. If the new will does not: then there is a presumption that the new will merely supplements the old will.
a. Exception: must be rebutted by clear and convincing evidence)
b. Both are operative to the extent that they are consistent.
c. The provisions of the new will prevail to the extent that they are inconsistent.
c. Examples:
i. Example:
a. Will #1: 1) I give my fountain pens to X, 2) I give $5,000 to Y, 3) I give the residue to Z, 4)
Five years later, X dies.
b. Will #2: 1) I give my fountain pens to Q, 2) I give $10,000 to Y, 3) I give the residue to Z.
i. Answer: Restatement Approach: This is a complete disposition under #1 above:
“complete disposition” approach, the second will revokes the first, A gets the pens,
Y gets $20,000, and Z gets the residuary estate.
c. In the Alternative:
d. Will #2: 1) I give my fountains pens to A, 2) I give $20,000 to Y
i. Answer: Restatement approach: Supplemental disposition under #2 above: it’s
presumed to supplement the prior will. It’s Unclear whether Y gets both $10,000
and $20,000, or just $20,000
ii. Example:
a. Will #1: T gave A the residuary estate.
b. Codicil: T gave A a pre-residuary gift of $10,000.

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 i. Q. Did T mean to substitute $10,000 for the residuary gift? Or give A an additional
$10,000, plus the residuary?
ii. Held: A would still take the residuary estate.
iii. Example:
a. Will #1: T gave the entire estate to A and named B as executor.
b. Codicil: T revoked the gift to A and gave the entire estate to Z.
i. Held: Z gets the estate, and B is executor.
iv. Example:
a. T intends to revoke Will #1 by executing a second will, but only one attesting witness signs
Will #2.
i. Will #1 is not revoked b/c the 2nd will was not validly executed. §3-4.1.a.1.

E. Revival: Revocation or Alteration of Later Will NOT to revive prior will or any provisions thereof – (3-
4.6)
 If after executing a will [#1], testator later executes will [#2] which revokes/alters #1  revocation
of will #2 does NOT revive will #1 or provisions thereof
 To revive a prior will or any of its provision, testator must do one of following
o (1) Executing a codicil or new will, incorporating by reference such prior will/any
provisions
o (2) Writing declaring revival of such prior will/provisions & executed with
formalities
o (3) Republication of prior will [re-execution & re-attestation with will formalities] ,
either with the original witnesses or new witnesses
 Note: You tear up a will  automatically revoke the codicil
 But if you revoke the codicil  you does not reinstate (revive) the previous will
 Examples
i. T validly executed a will giving her entire estate to X and later revoked it by another
will giving her entire estate to Y. After reconciling with X, she tore up the second
will. Is the gift to X revived?  No. EPTL 3-4.6.a
ii. T’s will contained the clause, “I give my car to my son.” Later he executed a codicil
that says, “I revoke the gift of the car to my son and I give the car to my daughter.”
Later he tore up the codicil. Does the son get the car? No. The revocation of the
codicil does not reinstate the gift in the will pursuant to §3-4.6.a- "revocation of the
later will does not, of itself, revive the prior will or any provision thereof." You also
need §1-2.19.b- which says that will includes the term codicil.
iii. T executed the following wills:
a. Will #1: I leave my whole estate to my daughter.
b. Will #2: For reasons best known to my daughter, I revoke my prior will and I
leave everything to my son.
c. Later, she reconciles with her daughter and tears up her second will. Who
gets the estate?->Here intestate distributes (the son and daughter in equal
shares if they are the only two distributees).
d. To accomplish T's goals here, T could have:
i. Could have executed a codicil and revoke the gift to the NC…giving
it back to child.
ii. Could have an explicit writing that says you want to revive the prior
will…executed with all the formalities. TC 41:00 2/7a
iii. Can take the revoked will and re-execute it…following all formalities.
F. Probating a Lost Will (SPCA 1407)
1) There is a rebuttable presumption of intent to revoke if the will is:
i. Missing
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 ii. Found Mutilated
iii. And in the testator’s possession
2) A lost or destroyed will CAN be probated only IF:
i. It’s established that the will was not revoked, AND
ii. Will was executed under formalities of 3-2.1, AND
iii. Prove contents of will [by at least 2 witnesses, copy/draft of will]
3) Estate of May: if Testator has original will and it’s lost/found in a destroyed state after T’s death, there is
a presumption T revoked the will BUT it can be successfully rebutted by other evidence (i.e. T told
someone on 2 occasions he had a will, no other will was discovered)

G. Cases
1) Gilbert v. Gilbert (requiring stated intention)
 Facts: Two writings were offered for probate: 1) An eight page typewritten instrument,
prepared by an attorney, dated April 2, 1976 2) Holographic instrument, written on both the
back of a card and an old pay stub, dated December 8, 1978. It instructed that certain
monies in a safe to be distributed to Him.
 Issue: Whether this holographic instrument is considered to be a new superseding will or a
codicil? – (If it is considered a superseding will…then the residue would pass in intestacy &
Jim gets screwed, b/c he was included in the 8pg will and also in the holographic will. If
the pay stub and back of the envelope were intended to supersede the will, then Jim would
have gotten only the money on the holographic instrument and not any money that was
given to him in the will
 Held: The holographic instrument supplemented the will, so both are good. They said the
second serves as a codicil b/c it doesn't contain a revocation clause and only distributes part
of the residuary estate.
 Rationale: The court found it unlikely that the T intended to supplant the elaborate
distribution of his estate contained in the 8 page typewritten will with a single phrase
scratched out on the back of a pay stub. Furthermore there was no revocation clause in the
2nd will and Kentucky courts have held that an instrument revokes another only if it is the
clear intent of the testator to do so.
2) Kronauge v. Stoecklein (Ohio 299) (writing in margin is not sufficient to constitute an act to revoke (no
touching); neihther it constitute with writing without proper formality
 Facts: A will was drawn up on the attorney’s stationery who also served as a witness. In the
otherwise blank margin of the will, in the handwriting of the testatrix, but not touching any of
the writing in the will, appear these words: “This will is void. We have never heard or seen
Jennifer or did she come to Jess’ funeral so I do not leave her anything.
 Issue: Did the writing in the margin revoke the will?
 Held: No. (Ohio)
 Analyzed As a Writing → In order for the writing to properly revoke the will, had to
follow all the proper formalities.
 Analyzed As an Act → If it is being analyzed as an act, it MUST touch some of the
text of the writing
3) Estate of Tolin (FL 303) - NY would have a different outcome, they wouldn't impose a constructive
trust.
 Facts: The testator tore up the copy of the codicil, but not the original codicil. Testator thought
it was the original however.
 Issue: Whether tearing up a copy is sufficient to revoke the codicil (mistake of fact).
 Held: NOT a valid revocation…and that the codicil was not revoked. HOWEVER, the court
imposed a Constructive Trust…which ultimately accomplished the same thing as revoking the
codicil.
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  Importance: Constructive Trust is appropriate under these unique circumstances and undisputed
facts. This is a remedy whereby the court finds a mistake was made and as a result of the
mistake, a person was unjustly enriched. That person who was unjustly enriched is held to
possess the money as a trustee for the person who really deserves it.
 NOTE: NY stated that a constructive trust would not be enforced when there is an absence of
wrongdoing! In NY…MUST have wrongdoing on someone’s part…mere mistake is NOT
enough.

Exercise on revocation of wills

1. assume your client storms into your office with her will, which gives her son a $10,000 bequest, and
tells you her son is a scoundrelrous mess. In the presence of you and your assistant, she grabs a broad
marker and crosses out her son’s bequest. What’s your reaction?
Under (a)(1), he’s trying to revoke part of  must be in written or trough instrument (In N.Y., not allowed to
partial revocation by act.
2. Assume another client calls you from Florida and asks to tear up her will, which you drafted, because
she’s going to have a new one done in Florida. What’s your reaction
No, you cannot do it without your presence and without two disinterested witnesses.
3. Assume you drafted a will for a client and she dies. Her son brings the will into your office and you
see that about half of the dispositive provisions have been crossed out and substitutes written in.
What’s your reaction? What if all the dispositive provisions have been crossed out?
If all content is crossed out  revocation
If half contents are crossed out getting back later : to what extent
4. When comparing the casebook discussion of revocation with New York’s statute, do you have the
sense that New York is stricter? In what way?
Much stricter, no partial revocation by act
5. How would a court have decided Gilbert v. Gilbert in New York?
The second is not effective as Testator are not allowed categories of people (military, member of arm forces,
etc) under ETPL 3-2.2 to make valid nuncupative or holographic will. (§3-4.1(b) refers to § 3-2.2)
6. Can a soldier revoke his nuncupative (oral) will? How?
Yes, 3-2.2 (solider, reporter with them, sailer)
Nuncupative will can be used to revoke non-nuncupative will 3-4.1(b), and nuncupative will can be revoked
by a non-nuncupative will.
7. Can a sailor revoke her holographic (signed and written instrument without formality) will? How
Yes, 3-2.2 – 3-4.1(b) same above.
8. Assume your client took her will home to her apartment and a fire consumed it. You have a copy in
your office. Can it be admitted to probate
SCPA § 1407 – rebuttable presumption of destroying the will

Class quiz 1: T’s 2014 will gave his fountain pens to A. In 2015 he executed a codicil whose only provision
was, “ I revoke the gift of the pens to A, and I give the foundtain pens to B,” has T revoked the gift to A? Has
he validly substituted a gift to B?
Yes, under §3-4.1(a)(1)(B) , can both revoke the gift to A (part of a will ) by codicil.

Quiz 2: original will: book to X and residuary to Y. Then codicil revoke the book to X. and then you tear up
the codicil. Under the the law, Y get entire estate including the book. EPTL§3-4.6 (revoke codicil does not
revive the will.

Quiz3: Assume all the will in this question were executed at midnight on Jan 1
T’s 2016 will gave his fountain pens to A and his residuary estate to the NC. In 2017, disgruntled with A, he
cut out A’s gift with a scissor and wrote in the margin, “I give these pens to B b/c A is a scurvy louse.” In 2018
46
, disgruntled with B, he executed a new will giving the pens to C and the residuary to NC. In 2019 , reconciled
with B, he tore up the new will because he wanted B to get the pens.
2016 A will still get the pens and NC get residuary.
2017 Cut with scissor (act cannot revoke the partial will, case law only probate the partial will) and wrote in
the margin (not effective because of lack of formality – two witnesses)EPTL 3-4.4
2018The next year, executed a new will revoked the original will  C will gets the pens and the NC gets the
rest.
2019 tearing up will not revive the revoked the will – EPTL 3-4.6.  the intestate distributes get the whole
estate including the pens.
Quiz 4: Assume everything’s done with the proper formalities.) In year 1, your client executes his will giving
his fountain pens to A and the residue to B. In year 2 he executes a codicil revoking the gift to A and giving
the pens to C. In year 3 he tears up the codicil because he wants A to have the pens. In year 4 he dies and the
executor offers the will for probate. Who gets the pens?
In year 2, if the codicil is properly executed and thus amend the year1 will under EPTL 3-4.1(a). In year3,
client torn up the codicil which under 3-4.1 revokes the codicil but cannot automatically revive the year 1 will.
Thus, the pen will go to B as residuary.

DEPENDENT RELATIVE REVOCATION [Ineffective Revocation]  Law of Second Best

1) Revocation is Not Revival: The revocation of a will does not revive an even earlier will. § 3-4.6(a)
a. E.g., D validly executed a will giving her book collection to her friend F. Last year, she
executed a codicil revoking the gift of the books to F and giving the books to her cousin C.
This year, having reconciled with F, she tore up the codicil. Who gets the books?
b. Answer: The residuary beneficiaries!
2) Law of 2nd best where a new will failed & old will was revoked—it’s not what testator really wanted
but it’s better than alternative. Gives T results that come close to actual intention when it cannot be
given effect.
 DRR: “Where the testator cancels the will w/present intention of making a new one
immediately as a substitute & new one is not made or, if made, it fails of effect for any reason,
it will be presumed that the testator preferred the old will to intestacy and the old one will be
admitted absent evidence overcoming the presumption.”
o Applies where it’s a clear intent of Testator that revocation of old will is conditional
upon validity of new will
4) Analysis under DRR: If T cancels will with intent to make a new one but it fails for any reason, it will be
presumed T preferred the old will to intestate, and the old one will be admitted absent evidence rebutting
the presumption. A partial/complete revocation of will is presumptively ineffective if:
1) Valid revocation: Did D validly/actually revoke Will #1? If yes go the second question; if no,
DRR is not triggered
2) Mistaken Belief: Did D revoke Will #1 on the assumption that Will #2 would substitute for
it? Was D disappointed in that assumption in the case the #2 actually cannot replace #1?
** These first 2 prongs trigger DRR as an issue**
a. Contemporaneity of revocation and the creation of the new will are factors but not
dispositive.
b. If the second will was revoked, we are not in the DRR any more…the decedent will be
intestate...can’t revive that second will.
3) Preference: Would she have preferred Will #1 to intestacy?
a. i.e., which is the “second best”?
b. If yes, then the revocation should be deemed ineffective.
c. Question of fact decided by judge—it depends on how close each is to the will that was
meant to substitute.

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 5) The Law: partial/complete revocation of a will is presumptively ineffective if T made revocation:
i. (1) in connection with an attempt to achieve dispositive objective that fails under applicable
law
ii. (2) because of a false assumption or law/false belief about an objective fact, that’s either
recited in revoking instrument of established by ‘clear & convincing evidence’
iii. Presumption established above is rebutted if allowing revocation to remain in effect would be
more consistent w/testator’s probable intention
6) Basic Analysis: if answer to all is Yes, then Dependent Relative Revocation applies
a. Did Testator/decedent clearly revoke Will #1?
b. Did Testator revoke Will #1 on the assumption that Will #2 would substitute for it, but in fact
did not substitute for it? And was she disappointed in that assumption?
- mistaken belief that revocation would reinstate Will #1
c. Would Testator have preferred Will #1 to intestacy?
7) DRR Example
Facts: D made a valid will in 2003, giving her book collection (worth about $5,000) to her friend F and the residue of
the estate (worth about $1,000,000) to her niece, Sarah Good. In 2004 she ripped up that will and made a new will,
giving her book collection to her friend F and the residuary of the estate to her “niece Sarah Good, whose maiden
name was Rhodes.” The second will did not conform to the formalities of EPTL 3-2.1. D’s only intestate distributee
was a first cousin in the old country whom she had never met. Discuss the possible application of the doctrine of
Dependent Relative Revocation.

 New York recognizes the doctrine of dependent relative revocation. Does that astonish you? (Perhaps it
should.) After reading the cases on dependent relative revocation, conjure up a case where you think
dependent relative revocation should definitely apply, one where it definitely should not, and one that’s a
close case.
 (1) Was the Will #1 truly revoked? Yes she actually rip it up.
 (2) Having concluded that the will was truly revoked, you’d next ask whether that revocation was
dependent on the testator’s mistaken belief that a new will would stand in for the old? Yes, but it actually
cannot substitute the old one because it did not conform to the formalities  she will be disappointed at
this result.
 (3). The next question would therefore be whether the revoked will would suit her better than intestacy?
Yes, she will prefer the old will than the intestacy. Therefore, the old will still effective.
8) Example of which may not applying DRR

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Ex: D had one relative, had a son with whom she was not particularly close. She validly executed a will,
making some pre-residuary gifts and leaving her substantial residuary estate to her friend, F. When her
nominated executor found the will after D’s death, she discovered that D had crossed out about half of its
provisions, all pre-residuary, and had scrawled the words "See Codicil" through the crossed-out sections. D
had not, however, executed the codicil (which changed a few of the pre-residuary beneficiaries and
reaffirmed the residuary gift) with the necessary statute-of-wills formalities. The decedent's son argued
that D had revoked the will, but F argued that the will could be properly probated. What arguments could
be made to persuade the court either way?
 (1). Was the Will #1 truly revoked?
o New York doesn’t allow partial revocation by act, so the crossed-out provisions are clearly not
revoked. The question is whether the actions were sufficient to revoke the entire will (because
revocation of the whole will by act is allowed in New York).
o On first blush, it looks as though the answer is no, because the facts hint that the crossed-out
pre-residuary clauses were relatively minor. If that’s true, you don’t need Dependent Relative
Revocation and the court will simply probate the will as written.
o If the cancelled clauses were in fact substantial bequests, a court might find that the acts of
cancellation were sufficient to revoke the entire will. (I could imagine a court so holding, for
example, if the crossed out pre-residuary gifts were $600,000 and the residuary $150,000.)
 (2). Having concluded that the will was truly revoked, you’d next ask whether that revocation was
dependent on the testator’s mistaken belief that a new will would stand in for the old.
o She had prepared a codicil, to which she made reference when she crossed out the clauses in her
will, and it did not take effect, so you could conclude that she was disappointed in her belief
that it would substitute for the revoked will.
 (3). The next question would therefore be whether the revoked will would suit her better than
intestacy
The answer is yes, since the friend is not an intestate distributee
9) Cases:
a. Schneider v. Harrington: T’s will gave 1/3 to P, 1/3 to M, 1/3 to A, and specifically disinherited other
brothers and sisters. She crossed out the gift to A (jurisdiction allowed partial revocation by act). She
changed the “1/3” to M&P to “1/2,” which didn’t satisfy the formality requirements.
i. Prongs 1 and 2: She validly revoked a part of her will, expecting the inked-in changes to
substitute for it, and they didn’t.
ii. Prong 3: The will as originally written would undoubtedly have been her second choice,
because she affirmatively disinherited all the intestate distributees but those mentioned in
the original will. Therefore, admit the will as originally written, without the changes.
b. Matter of Callahan: 1940 Will left minimal amount to drunk son, Alfred. 1944, left son more $. When
Alfred resumed drinking, T tore up 1944 will expecting that it would revive the 1940 will. T became
incompetent. Reverse DRR → She revoked a later will with the expectation that an earlier will would
replace it. Held: The ’44 will was revoked and reinstated the ’40 will. The court looked at the 2nd
best for the wife! The court found that her grief and loss were understandable for her not to prepare a
new will within 16 days of her husbands’ death. TC 45:36 2/7b (for details, see p 83 of old outline
c. Estate of Patten Patten case is not considered valid in NY!
i. Ella (testator) had 2 sons
ii. Will #1 (1968) left bulk of estate to son Donald.
iii. Will #2 (1970) left bulk of estate to son Donald, but was improperly executed. –she didn’t sign
in the presence of witnesses nor acknolweged her signature to them
iv. Will #1 could not be found and the son offered a copy for probate.
v. Analysis:

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  Was will #1 revoked? Obviously, will #2 didn’t revoke it b/c it wasn't effective. The court
referred to will #1’s “destruction,” a conclusion it probably reached because the testator
had custody of it and it was missing at her death.
 Assume, as the court did, that Will #1 was revoked. Did D revoke Will #1 on the
assumption that Will #2 would substitute for it? Was she disappointed in that assumption??
 Court thought no (page 339) because there was no evidence of contemporaneity. Here
the court added the element that the first will was destroyed contemporaneously with
the second will.
 Restatement comment is critical of that result (page 340), as am I.
 She seemed to have revoked the first will in the mistaken belief that the second would
substitute for it, and it didn’t.
 C. Would she have preferred Will #1 to intestacy? No
 Here, testators intent was not clear and conviencing –said other son should get summary
judgement – no evidence that the 1968 will depended upon the validity of the 1970 will—
dependent relative revocation has no application under these circumstances
1. Donald could not prove that the mother intended the destruction of the 1968
will to depend upon the validy of the 1970 will—no1 knows when the mother
destroyed will or how she did it—it was also not executed concurrently or
shortly after the destruction of the 1968 will.
2. Dependant Relative Revocation must be proved by substantial evidence of
probative value. This court said that we will not make the jump to say she
never would have revoked 1st if 2nd will would not be accepted. These wills
were not similar and there is no evidence that T’s intent was clear and
convincing. This case was not well received. (Montana)
d. Matter of Sharp: D had five wills. The latest, 2001, was not properly executed. The next two- 1979
and 1977, had been in T’s possession and were presumed revoked because they were missing at
death. She had wills in 1972 and 1974, each revoked by the next will. T did not revoke her 1974 will
under the mistaken belief that a later will would substitute for it; in fact, the 1977 will did revoke and
replace the 1974 will. DRR did not apply, nor did revoking the 1977 will revive the 1974 will. DRR
could have operated to revive only the 1979 will. Ct held → T is intestate
e. Hypo: D had one son with whom she was not particularly close. She validly executed a will, making
some pre-residuary gifts and leaving residuary estate to her friend, F. When her nominated executor
found the will after D’s death, she discovered that D had crossed out about half of its provisions, all
pre-residuary, and wrote "See Codicil" through the crossed-out sections. D had not, however,
executed the codicil (which changed a few of the pre-residuary beneficiaries and reaffirmed the
residuary gift) with the necessary statute-of-wills formalities. The decedent's son argued that D had
revoked the will, but F argued that the will could be properly probated.
New York doesn’t allow partial revocation by act, so the crossed-out provisions are clearly not
revoked. The question is whether the actions were sufficient to revoke the entire will
(because revocation of the whole will by act is allowed in New York).
 If the crossed-out pre-residuary clauses were relatively minor, it will not be revoked & don’t
need DRR because the court will simply probate the will as written.
 If the cancelled clauses were in fact substantial bequests, a court might find that the acts of
cancellation were sufficient to revoke the entire will.
o USE DRR: She had prepared a codicil, to which she made reference when she crossed
out the clauses in her will, and it did not take effect, so she was disappointed in her
belief that it would substitute for the revoked will. And it would be better than intestacy
because friend would not take under intestacy.
H. Examples of Revocation
1. T validly executed a will and later crossed out every line in the will with a thin lead pencil. Has he
revoked his will?
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 a. Yes. An entire will can be revoked by an act of cancellation. Subparagraph (a)(2)(A). (The
preamble to these hypos posits revocatory intent.)
2. T validly executed a will and later crossed out with a thin lead pencil a bequest of $100,000 to her
cousin C. She simultaneously wrote in the margin next to that bequest, “Revoked. I give the $100,000
to my brother B instead.” What result?
b. First, C gets $100,000, because her bequest was not revoked. Authority? A. 3-4.1(a)(1) and (2)
(Part of a will can be revoked only by a formal writing)
c. An act of destruction can revoke only an entire will.
d. B gets nothing b/c The testator tried to make B’s bequest without the formalities of EPTL 3-2.1.
3. (from Revocation slide) T validly executed a will and later crossed out her signature. Has she revoked
her will?
a. Courts held: If there is proof that the signature was crossed out by the T with T's intent to
revoke the will  will is revoked.
4. T validly executed a will and later crossed out the first provision, which gave a general pecuniary
bequest of $10,000 to X, by heavily inking thick lines through it. Has the gift to X been revoked?
a. No- §3-4.1(a)(2) & §3-4.1(a)(1): An act is effective in revoking only an entire will, not part.
5. Same as #7, but instead of inking out the provision for X, T cut it out with scissors. Has she revoked
the gift to X?
a. No, act is ineffective, however, if the excised material cannot be determined, the court has to
decide whether to admit the will without it.
b. Where the will is otherwise valid, and there is no way to tell what the removed part said, court's
will allow it to probate. Thus, the T will be successful. Very Rare. TC 45:23 2/2b
6. D validly executed a will & then tore up into a thousand shreds a document that she thought was the
will. Unbeknownst to her, A had substituted another paper for the will, and the original will remained
in A’s custody. Did D successfully revoke her will?  NO, not a successful revocation. Intent to
revoke will is not enough → this is an intent + act statute. This was fraud!! Court imposed a
constructive trust on the estate, due to mistake of fact and paid it to T’s intestate distributees.
7. T validly executed a will and later tore it up after drinking large quantities of alcohol. Has she revoked
her will?
a. That depends. If she lacked testamentary capacity, the revocation is ineffective and the will
remains in effect. Authority: The words “if intended by the testator” in 3-4.1(a).

CONDITIONS ON WILL

A. Conditions Introduction
1. General Rule: Conditions on a disposition in a will are operative even if the testator does not provide
for an alternative upon the condition’s non-occurrence. § 3-3.5(a).  opposite of common law, had to
provide an alt gift
i. Condition: You can say in your will "I give my son $500 if only he has ceased smoking.
ii. Not a Condition: “If I should expire from this operation; I wish my wife should inherit everything.”
This was not a conditional will but it instead expressed the testator’s inducement for writing the
will.
2. Threshold question: is this a condition? Court should be admitted to probate → courts decide if it's idle
chatter or actual condition; no condition
i. If you devise something to your in-law, then divorce, then die, the question becomes whether it was
a condition that she remain your in-law or was it simply your way of referring to her? The court
will decide
3. Conditions are permissible as long as they are not against public policy and allowed to be present in a will.
The courts must:
a. Decide if it is in fact a condition:

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  “If I should expire from this operation; I wish my wife should inherit everything.” This
was not a conditional will but it instead expressed the testator’s inducement for writing
the will.
b. If it is a condition, did the person fulfill the condition?
 Decisions denying probate to wills because the stated conditions fail do occur from time
to time.
 i.e., “In the event we should die simultaneously or within a short time of each other,” we
devise our property to all our children except our daughter Anne.” The wife died 3
years after her husband and the court held that her will was clearly and unambiguously
conditional.

B. Discrimination Gifts what to do when a bequest is discriminatory?

1. Discriminatory gifts are allowed IF there is no state action.
i. The existence of a state trustee (i.e. school selecting students) would trigger state action.
ii. Substituting the trustee through cy pres is NOT state action if the discrimination is
benign (e.g., gender scholarships in school - Wilson), but it is if the discrimination is bad
(e.g., race discrimination or religious, the court will eliminate discrimination).
2. Can privately discriminate in your will, have a condition that disinherits someone but CANNOT have
a condition that goes against public policy or discrimination involving government entity [just take
government actor out]
o Allowed: “to A if A marries within our religion”
o NOT Allowed: “To A, if A divorces his wife” or “to A if A kills B”
3. Cy-press Doctrine: permits court to alter terms of a charitable gift if gift cannot be administered in
the way it was made
i. Process of analysis: The court asking itself, should we use the funds to do something
else (i.e. close to) because what has been requested is impossible to carry out. Second,
did this person have a general charitable intent
ii. Estate of Wilson (NY 963) 21:50 2/9a/06
a. Facts of Wilson- Wilson, in his will, devised the residue of his estate to the top 5
highest "male" students who graduate from Canastota High School, as may be
certified by the Superintendent of Schools for Canastota Central School District.
b. Facts Of Johnson - Johnson, in his will, devised the residue of his estate to
Croton-Harmon School, in trust, to apply income for scholarships to bright and
deserving young men who graduate from the High School, and whose parents
are financially unable to send them to college, and who shall be selected by the
Board of Ed of such school district with the assistance of the principal of such
high school.
c. The Court of Appeals affirmed Wilson’s Surrogate Court’s decision which struck
out the clause requiring the district’s certification (candidates were permitted to
apply directly to the trustee and therefore avoid involving the school district).
 Since the school district was removed, the state was not involved.
(rejected cy pres approach)
d. The Court of Appeals reversed the Johnson Surrogate Court’s decision which
ordered the gender restriction eliminated from the trusts. The court said this
restriction may have been against public policy but it was a charitable trust that
is central to the testator’s intent. It was T’s purpose and intent and it was not
illegal. Thus, should not be invalidated on public policy grounds.
e. Application of CY PRES DOCTRINE: This policy only applies in the case of
charitable trusts. It states that if it is impossible to carry out the trust the way
that it was written, BUT the T had a general charitable intent (NOTspecific)
THEN the court can reform the trust and give it out in a different way.
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  The court removes the state action. If the court did not find an
underlying good thing, the court would have done away with it.
f. Key: If T had a general intent (i.e., donating money to a hospital but not
specifying the wing or the disease to benefit from the money) then the court
could have put the money to a room in the hospital. Application of cy pres
doctrine.

C. No-Contest Conditions (Interrorem Clause) - § 3-3.5:

1. You use this if you think your family will fight over the $ in the will after you die!
2. What is it? A condition, designed to prevent a disposition from taking effect in case the will is
contested by the beneficiary; (i.e., person who leaves $ to relative but says “if you contest this will”
you'll lose this $$ = valid. Purpose: silence the annoying child, avoid litigation)
3. No-contest clause= accept will as is or lose it all if you contest. If you contest the will anyway and you
win, you will get either through intestacy or another will. If you loose, you loose everything!
a. “These provisions are operative despite the presence or absence of probable cause for such
contest subject to the following:”
4. Conditions Qualifying Dispositions; Conditions against Contest (3-3.5)
o Balance between testator who was unduly influence & protect testator’s true intent
o Can place a condition [a gift on an event] on the will despite the fact there’s no alternative
o General rule : it is legit to put ‘if you contest, you lose your bequest’
o Exceptions : beneficiary can still contest the will & NOT lose bequest IF [Safe Harbor
Provision]
i. On the grounds of forgery or revocation by later instrument
 Rationale: these are easy to prove, unlike fraud or UI
ii. Infant or incompetent opposes probate of will for any reason[won’t lose bequest]
 Rationale: this person will have a guardian ad litem & it's their job to
contest
iii. No forfeiture if:
1. Objection to court jurisdiction
2. Disclosure to parties/court of information relating to any document offered
for probate as a last will OR relevant to probate proceedings  can tell the ct
that the will was a scam and father did not have capacity to make will (will
force the ct to look into it)
3. Refusal to join probate petition or to sign waiver/consent – not contesting
4. File for a construction of the will once probate was commenced
5. SCPA 1404 preliminary examination – when will is offered for probate,
necessary parties get notice and anyone with objections can come forth. Can
examine witnesses, preparer, proponents of will to determine validity of will
 i.e., an examination before trial, usually of the examining witnesses
 This is a MAJOR exception, which allows L to determine if he will
bring a suit – identifies how T made will/intent!
6. Initiating or joining a proceeding to interpret the will. (b)(3)(E).
 Not a contest if, after probate is complete, there is an ambiguity
(something not understandable) in the will & they have to ask ct to
interpret a clause → start a constructive proceeding and wont lose
your bequest. Safe harbor provisions.
5. Case:
i. Matter of Singer: Son conducted deposition of Ts prior attorney to find out whether will was
consistent. Son decided not to contest the will. This didn’t fit under exception. Court held these
exceptions (the safe harbor) are not exclusive → Balance rights of legitimate contestant by
allowing deposition or examination of other individuals (i.e. former attorney such as here).
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 Court of Appeals decided to give the court discretion “in special circumstances,” to allow the
deposition of a person with information of "potential value or relevance."
 If contestant really believes will is valid, she would take her money.
If not, she’d rather take chances and oppose it.

CATEGORIES OF DISPOSITION
A. Two-Step Process
(1) Identify Bequest [Classification of Devise]  Specific, general, demonstrative, residuary
 Ask about testator’s intent
(2) Apply Doctrine Based on Classification of DeviseApply ademption, abatement, accession rules
B. Categories of Testamentary Dispositions
(1) Specific Disposition specifically identified item of testator’s property. [‘all/my’]
a. I give all of my shares/my 300 shares of X stock to you
b. I give my North Fork bank account #1234 to Erin
c. I give proceeds from a half-interest in my condo (because there is no specific
amount of money.)
d. I give my diamond bracelet to X (even if that diamond bracelet is not longer the
same one bc she sold it, if she got a more expensive one after, it would still fit under
that description and the person would still receive it!
e. I give one-half interest in my condo apartment to Kevin
(2) General Disposition – usually specified amount of money/quantity of property, that is
payable from the general assets of the estate. Recipient gets it regardless of whether the
bequest is in the estate when the testamentary dies. [any general # amount]
a. I give 300 shares of Amex to Betty (if you don’t have 300 shares, testator will go &
buy]
b. I give $10,000 to Betty

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 c. It is an amount of money or number of shares (without “my” or some other specific
language).
(3) Demonstrative Disposition – property that’s to be taken out of specified or identified
property. Usually a specified amount of money/quantity of property that’s primarily payable
from a designated source, but is secondarily payable from general assets of estate to extent
that primary source is insufficient [out of]
a. Directs from where & what source bequest should be taken from
b. Pecuniary Amount & Source – specifies amount & where amount is to be taken from
c. Looks like a general bequest but names a specific source – if you state Dollar
Amount/quantity of property & source = demonstrative disposition.
d. I give $10,000 out of my Washington Mutual account to B
e. I give $10,000 to be paid out of my condo sale proceeds to B
(4) Residuary Disposition – everything left after pre-residuary gifts after specific, general &
demonstrative dispositions
a. ‘I give the rest, residue & remainder of my estate to A’
b. I give my entire estate to A’

I give my entire estate to L Residuary (defined as something rest that is disposed

I give my pup Perry to M
I give my Chase Bank account to N
4. I give my co-op apartment at 45 123rd St. to O
5. I give one-half interest in my co-op at 45 123rd St.
to P
6. I give the sales proceeds of the sale of my co-op at
45 123rd St. to Q.
7. I give one-half the sales proceeds of the sale of my
co-op at 45 123rd St. to R
8. I give $10,000 out of the proceeds of the sale of co-
op at 45 123rd St. to S
9. I give my 222 shares of Facebook to T
10.I give all of my IBM stock to U
I give $10,000 out of my Chase savings account
#12345 to V
I give 300 shares of Facebook from my Fiduciary
account #12345 to W
I give $100,000 to X
I give 300 shares of Facebook to Y
I give the rest, residue and remainder of my estate to
Z
after specifically disposed)
Specific (if the pup died, M will get new Perry)
Specific
specific
Specific (not specific money or quantity of property)
Specific (the proceeds)
Specific
Demo (if the co-op does not exist , then could get
from other sources)
Specific (doesn’t say from xxx) (my presumption
of specific)
Specific 3-3.1(if die with 150 shares, all go to my
pocket, even he made the will there was 100 shares)
Demo (amount of money + property)
Demo (quantity of property + source)
general
General (because there is no “my”)
Residuary

ADEMPTION (specific dispostions)

A. Ademption

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 1. Ademption by Extinction  specific bequest is adeemed/ineffective if testator no longer owns specific
devised property at death
a. Apples ONLY to specific devises and once it’s gone at testator’s death, beneficiary gets nothing
b. Matter of Law: If the property is gone, the specific bequest is adeemed. Ts intent doesn’t matter.
i. Once the specific bequest is gone, that person does not get anything!
c. Example 1: In Article First of his will, T gave his fountain pens to his friend F. A year or two after
writing the will, he gave the pens to his son S, who sold them. Does F have any claim?
i. No. In New York we follow the ademption-by-extinction rule: If the subject of a specific
bequest is gone at the testator’s death, the beneficiary gets nothing.
2. Ways of Avoiding Ademption by Extinction
a. Reclassification of Devise [change to general/demonstrative]
b. Change in form
c. Time-of-Death construction technique
3. Cases:
a. Estate of Hume (NY follows this case).
i. Facts: The house was given to N, the house was later sold in a foreclosure sale.
ii. Issues: Does the surplus from the foreclosure sale go to N? Are the proceeds part of the
specific bequest?
iii. Held: The S.C. said no! Foreclosure sale caused a material alteration to the subject matter
of the specific bequest so that the proceeds cannot be substituted as or for the specific
bequest.
a. Testator’s intent is irrelevant in deciding the question of whether a specific bequest
has been adeemed by extinction.
b. A foreclosure sale so alters the form of the specific bequest of a house that an
ademption by extinction results regardless of whether identifiable proceeds remain
from the foreclosure sale.
c. The foreclosure sale prior to Hume’s death adeemed the specific bequest of the
house.
d. Matter of Law: If the property is gone, the specific bequest is adeemed.
b. Brann Case: if it is the specific gift “30 shares of Standard oil owned by me”. Then other 39 shares
the testator gets later in his life is not included in the gift
a. Cash dividend and stock dividend would not be part of the bequeath at death (NY)
b. Stock split is part of the bequeath at death (NY)
4. Identity vs. Intent theory
a. Identity ademption depends solely upon whether the subject matter of the specific devise exists
as part of the testator’s estate at death (NY)
b. Intent is only examined to determine what kind of disposition was made, NOT to determine
whether the testator intended the ademption of the property (pg. 309 Note 1

B. Adepemtion Exceptions
1. Reclassification of the devise (by finding the disposition is not specific) or change in form, not
substance (interest of partnership = interest of corporation  just a change in form  ademption will
not be applied)
2. Demonstrative devises: Demonstrative dispositions will still be paid out of the general estate if the
source no longer exists.
a. E.g., T wrote the following bequest: “I give to my friend F $35,000 out of my North Fork
account.” Five years later she emptied out the North Fork account and never reopened it. Does
F have any claim to $35,000? Yes - demonstrative bequests do NOT adeem, but rather the
beneficiary gets the pecuniary sum from somewhere else in the estate.
b. Executor can satisfy the bequest either in cash or in kind (i.e. sell the artwork, furniture, etc.)
3. Insurance proceeds - EPTL § 3-4.5:
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 -Beneficiary gets insurance proceeds if…
1) A specifically bequeathed or devised property is
2) Damaged or destroyed
3) BEFORE the decedent's death and
4) The insurance is paid to the executor AFTER the decedent's death,
5) That money retains the character of a specific disposition and the beneficiary is entitled to
it.
a. E.g., T gave his fountain pen collection to his friend F. Later, his house burned down,
the pens were destroyed, and T died. The homeowner’s insurance carrier paid the
executor $50,000 for the loss of the fountain pens two months after the T’s death. Does
F have any claim to it? Yes - F gets insurance $$ for the pens.
b. BUT this insurance exception does NOT apply to insurance proceeds received by
executor before the decedent's death, OR property destroyed after Ds death.
i. E.g. pens were destroyed, T got $50K in insurance, put it in the bank with a note
“for F.” F has no claim bc at the time pens were destroyed, it adeemed, and
writing was informal.
4. Traceable sales of specific dispositions where the testator lost his/her mental capacity - EPTL § 3-4.4
a. Statute is triggered when…
i. Decedent is competent at the time of making the will, and
ii. Becomes incompetent, and
iii. A guardian (but NOT fiduciary) sells the specific disposition,
iv. During the decedent's lifetime, and
v. There is money remaining from the specific property.
b. THEN: the beneficiary of such specific disposition becomes entitled to receive any
remaining money or other property into which the proceeds from such sale or transfer
may be traced.
i. The beneficiary get whatever is left
ii. Unlike insurance proceeds, If there is an abatement problem, you do not retain status as
specific beneficiary
iii. E.g., T gave his fountain pens to his friend F. Later, T’s health deteriorated and the
court appointed a guardian to handle his affairs. The guardian sold the pens for $50K
to put T in a nursing home. Soon later, T died. The $40K left from the sale of the pens
was earmarked in the guardianship account. Does F get it? Yes!
iv. What if guardian used $40k of total to care for T? F will get remaining $10k.
v. NY contra to Mason Rule (CA) and UPC: both say that if a guardian uses assets, any
deficiency to the specific devisee will be paid out of the residuary of the estate.

C. Divorce Doctrine EPTL § 5-1.4:

i. Ademption DOES NOT apply here! If you get divorced, gifts to your spouse automatically revoke.
ii. E.g., W in her will gives H her fountain pen collection. She still owned the pens at her death, but she
and her husband had by that time obtained a valid New York divorce. Does H have any claim to the
pens? No, but not question of ademption. If you are divorced, gift to husband is automatically
revoked.

D. Encumbrances on Property - EPTL § 3-3.6

1) If a decedent's property or life insurance policy is encumbered by lien or mortgage: the beneficiary
takes it subject to the encumbrance. if you don’t say I want my executor to pay mortgage on the
house – the son gets the house with the mortgage attached.
a. The creditor has recourse to the property or insurance policy, but the beneficiary is not
personally liable for the excess.
i. i.e. son can refuse to take house, but if he takes it he must pay the mortgage.
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 b. The creditor may go to the executor to satisfy the deficiency or executor can direct estate to
pay debt to let property pass free and clear.
2) If the encumbered property passes to two or more beneficiaries: they are responsible to satisfy it
ratably out of their respective shares (a parallel rule where two properties are encumbered
3) The personal representative/fiduciary is not responsible for the encumbrances EXCEPT “taxes
assessed on property of the deceased prior to his death”
4) (A) if you make specific bequest to property with a lien, beneficiary takes property subject to the lien;
need to get rid of the lien first then beneficiary gets it. Just because house was specifically bequeathed,
doesn’t impose personal liability.
5) (B) Property itself is responsible for payment of debt. Take property subject to the debt [if you want the
property, must pay off debt] BUT no personal liability (don’t have to pay rest of debt if something
happens). Since beneficiary takes property with mortgage attached, unlikely to accept if mortgage is
more than FMV. When any lien encumbers:
i. Property passing to 2 or more people=> each shall bear proportionate share of total
encumbrance
ii. 2 or more properties=> each property shall bear its proportionate share of the total
encumbrance

E. Particular dispositions that do and do not adeem

1) Stock splits that happen between execution and death
a. If the disposition was specific: beneficiary DOES GET the increase in the # of shares resulting from
the stock split.
b. If the disposition was general: beneficiary DOES NOT get the benefit of the stock split.
2) Cash Dividends decedent receives before death but after will is executed
3) These dividends DO NOT GO to the specific devisee, even if the devisee is specific and the money can be
traced.
4) Stock Dividends
a. In NY & majority of jurisdictions: treat stock dividends as cash dividends, thus, specific devisee
DOES NOT get additional shares.
b. UPC: treats stock dividends the same as stock splits, thus specific devisee gets all additional
shares
5) Increases in the Market value of stock
a. DO go to specific devisee.
b. E.g., At the time will is executed, stock is worth 5k and at the time of death will is worth 7.5k,
during which time a 1k cash dividends was given. Who gets what? The specific devisee of the
stock gets the stock worth 7.5k. He doesn't get the 1k cash dividend, even it could be traced.

6) Ks to sell real/personal property that were not executed before decedent's death - EPTL § 3-4.2
a. The unexecuted K DOES NOT adeem/revoke the specific disposition
b. BUT the beneficiary takes the property subject to the rights created by the contract.
i. E.g., a testator may have devised his house to his daughter in his will but subsequently
entered into a contract to sell it. If he dies before the closing, the daughter is still entitled
to the house, but takes it subject to the contract. Hence, she must perform the K and is
entitled to the proceeds of sale that remain to be paid.
ii. K could be to let someone use the property, sell it, etc. If K is complete, closing is done
and house sold, then beneficiary does not get anything.
7) Property that has been altered - EPTL § 3-4.3: If a testator…
a. Makes a specific disposition of property, AND
b. Makes a conveyance, enters into a contract or commits some other act that affects that property
BUT
c. Does not wholly divest herself of the property, AND
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 d. T's conveyance, settlement, or other act is NOT wholly inconsistent with the disposition, THEN
e. The disposition does not adeem & the property that remains in her hands passes to the
beneficiary.
i. E.g., Decedent wrote a will bequeathing her mink coat and later had it cut down into a
stole. While this act affected the coat, it did not wholly divest the decedent of the coat, and
it was not completely inconsistent with the bequest, so it was not a revocation/ademption.
Thus, the specific devisee gets the stole. Matter of Winfield
ii. Decedent owns a house and disposed of it by will to the son. While still living in the
house, decedent creates a tenancy in common. Right of son in the property not divested,
but only altered.

F. In Matter of Maruccia
a. The wife had left a bequest to her husband. They later entered into a separation agreement, and before
they had completed their divorce, she died. In one of the terms of the separation agreement, she
relinquished
b. All claims or rights which may now exist or hereafter arise by reason of the marriage with respect to
any property, whether real or personal. Each party waives and releases all right to share in any of the
property or estate of such other party which has arisen or may hereafter arise by operation of the law or
otherwise, and hereby specifically waives and releases all right of dower or curtesy, or rights in lieu
thereof, and all rights to share in the estate of the other party under the intestacy laws and all right of
election to take against any will or testamentary substitute or inter vivos transfer and all right to
administer the estate of such other party.

G. Avoidance
 Three discretionary ways to get around ademption:
1) Reclassification of the devise: a party can argue that a specific devise (e.g., “the proceeds
from my interest in the condo,” when the testator was in the process of selling it and had a
dollar amount in mind) is demonstrative.
2) Change in form: a party can argue that the specific disposition actually still exists, e.g., the
shares of a target company actually still exist as shares of the acquiring company.
3) Time of death construction: if the testator gives “my car,” but then sells it and buys
another car, the court will consider it as if the testator had that latter car.

ABATEMENT
Comes into place when there’s not ENOUGH in the estate to cover all distributions
Abatement
A. EPTL 13-1.3: Debts must be paid first. No distinctions between real and personal property.
B. Doctrine - When there is not enough in the estate to dispose of all the property distributed in the will, gifts
abate (i.e., are lost) in the following order ((After paying debts, property abates as follows))
1) Distributions not disposed of by will (e.g., intestate shares)  intestate & invalid dispositions are
first to get chopped off/eliminated
2) Residuary dispositions  gets eliminated from estate
3) General dispositions, ratably (although the statute does not say ratably)
i. Demonstrative dispositions count as general to the extent that their source has adeemed (e.g.
10K out of my bank acct, but it closed  abates under general).
a. But if account is not closed but only has 5k  then it is not adeemed
ii. pro rate (by ratio); same proportion as original gifts. Demonstrative are treated as general to
the extent that property/fund is no longer there/closed
4) Specific dispositions, ratably –FIRST PRIORITY
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 i. Specific gifts get everything and demonstrative dispositions are treated as specific if
property/fund is still there [even partially]
ii. Demonstrative dispositions count as specific to the extent that the source has NOT
adeemed/the source is still there (e.g. 10K out of bank acct, still there).
iii. If there is less than the full amount of the gift in the source, then the portion that is there
counts as a specific disposition, and the portion that is no longer there counts as a general
disposition
iv. EX: partially adeemed (ex: gave a bequest of $100 to X, but you only had $50 in the
account upon your death) – then treat it was partially specific and partially general.
5) Any disposition to a surviving spouse which qualifies for the tax exemption. [i.e., leave something
to wife in your will]
i. Doesn't matter what type of disposition goes to spouse
ii. All outright bequests subject to marital deductions (i.e. gave 1000k outright to the spouse)
**Abatement does NOT apply to the payment of estate or other death tax**
iii. NOTE: If a gift is left as a residuary one to the spouse, it does not qualify for the
marital deduction and therefore does not get priority for abatement purposes (but the
spouse can always elect against the will- 1/3rd of estate)
C. When the estate requires that a specific disposition be abated, the beneficiary has two options:
a. (1) Executor can sell the specific disposition and give you the remainder, if any
b. (2) You can keep the specific disposition and give back the difference
D. Intent: Whenever the provisions…are inconsistent with the express or implied intention of the testator…the
property of the estate shall be applied and the interests of the beneficiaries under the will shall abate in such
manner as is necessary to give effect to the intention of the testator. (e)
E. Examples
i. T gave antique desk to A, $10,000 to B and $5,000 to C and residuary to D. T dies only w/ the
antique desk and $10,000
a. A gets the desk, B & C split the money proportionately,
b. B= $6,667 and C= $3,333, D gets nothing
ii. When D died, his gross estate was $3,000,000. After deducting taxes, debts and administration
expenses of $1,000,000, the executor had $2,000,000 left for distribution to beneficiaries, including
a pen collection worth $200,000. D duly executed a will in which he gave the pens to A,
$2,000,000 to B, and the residue to C. How should the executor distribute the estate?
a. There is no intestate property to abate.
b. §13-1.3(c)(2) - Residuary: Gets Nothing: i.e., abates fully. C gets nothing.
c. (c)(3) - General: General bequests abate before specific, so the remaining $1,800,000
goes to B for partial satisfaction of his general legacy.
d. (c)(4) - Specific: The pen collection abates last, so A gets the pens.
iii. In D’s will he gave his book collection to Q, $500,000 from his Washington Mutual account to R,
$100,000 to S and $1,000,000 to T, and the residue to U and V equally. U and V were his preferred
beneficiaries, and he expected that under this arrangement they would inherit a great deal. Sadly, D
met with substantial reverses before his death and his net estate had dwindled to $1,800,000,
including the book collection valued at $200,000, the Washington Mutual account containing
$500,000, and $1,100,000 in stocks and bonds. Who gets what in this estate?
Executed Will Gave: Estate had at death Who gets what
Q = book collection, specific 200k books Q- gets books
R =500kfrom Washington, 500k washing R - gets 500k
demonstrative
S = 100k, general 1,100k in stocks & bonds S = 100k
T = 1,000k, general T = 1,000k
U & V = residue Abates

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 iv. Assume the same facts as in question 2, but assume that the Washington Mutual bank account
had been closed and the securities were worth $800,000. That is, the estate consisted of the
books and $800,000 in securities. Who gets what?
Executed Will Gave: Estate had at death Who gets what
Q = book collection, specific 200k books Q- gets books
R = 500kfromWashington, Closed  general R = 250k (abates ratably
demonstrative by 5:1:10) (§13-1.3.c.4)
S = 100k, general 800k in stocks & bonds S = 50k (abates ratably
by 5:1:10)
T = 1,000k, general T = 500k (abates ratably
by 5:1:10)
U & V = residue Abates

v. Assume the same facts as in question 2, except that the will gave $200,000 from the Washington
Mutual account to R, and at his death the Washington Mutual account contained only $100,000.
D's net estate was $1,100,000, including the books, the Washington Mutual account and
$800,000 in securities. Who gets what?
Executed Will Gave: Estate had at death Who gets what
Q = book collection, specific 200k books Q= gets books
R = 200k from Washington, 100k  specific R = 100k +66.666k
demonstrative (abates ratably by 1:1:10)
(§13-1.3.c.4)
S = 100k, general 800k in stocks S = 66.666k (abates
ratably by 1:1:10)
T = 1,000k, general T = 666.666k (abates
ratably by 1:1:10)
U & V = residue Abates

vi. D's will gave his diamond to X (worth $100,000), his fountain pens to Y (worth $200,000), and the
residue to Z. His debts and expenses reduced his net estate to $100,000; that is, his executor used
the liquid assets, still owed $200,000, and had only the diamond and the fountain pens left. Who
gets what?
Executed Will Gave: Estate had at death Who gets what
X = diamond, FMV 100k 100k Q= 33k (abates ratably
specific by 1:2)
Y = 200k, pens, specific 200k Y = 66k (abates ratably
by 1:2)
Z = residue (200k) of debt Z = Abates entirely

vii. D’s will gave his ring (worth $90,000) to his son, $20,000 from his Washington Mutual account to
his daughter, $200,000 to Wife, $100,000 to his mother, and the residue to the Nature Conservancy.
The net estate consisted of the ring plus $220,000, including the Washington Mutual account.
Who gets what?
Executed Will Gave: Estate had at death Who gets what
Son = diamond, FMV 90k 90k Son = 90k
specific
Daughter = 20k Washington 20k Daughter = 20k
bank, 200k, demonstrative
W = 200k, general 200k cash Wife= 200k
Mother= 100k , general Mother= abates
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 Nature = residue Nature= abates
viii. D’s will gave his ring (worth $10,000) to his son, $200,000 in Washington Mutual account to his
daughter, $200,000 to his sister, $100,000 to his mother, and the residue to W. The estate consisted
of the ring and $200,000 in the Washington Mutual account. Who gets what?
Executed Will Gave: Estate had at death Who gets what
Son = diamond, FMV 10k 10k Son = 10k
specific
Daughter = 200k Washington 200k Daughter = 200k
bank, 200k, demonstrative
Sister = 200k, general No Cash Sister = Abates
Mother = 100k , general Mother= abates
W = residue Abates-b/c she is a Wife = abates, HOWEVER, she can elect
residuary...--> against the will under EPTL 5-1.1-A

When T properly executed her will, she had $300,000. Her will gave her book collection (worth $20,000) to A,
her fountain pens (worth $30,000) to B, $10,000 out of her Chase account to C, $20,000 to D, $100,000 to her
husband H, and the residuary estate to E. The value of T’s estate changed from time to time. After she died, the
executor correctly paid T’s debts, taxes and expenses (funeral and administration), which totaled $30,000, so the
figures I give below are net estate. Everyone survived.
A: specific; B: specific; C: demo; D: general, H: general (but to spouse); E: residuary
1.The estate consisted of $90,000, including the book collection (still worth $20,000), the fountain pens (still
worth $30,000), $10,000 in the Chase account and $30,000 in cash. How should the executor distribute those
assets?
Start with the one most privilege  H gets will get the whole thing  $90,000.

2.The estate consisted of $170,000, including the book collection (now worth $15,000), the fountain pens (now
worth $45,000), $5,000 in the Chase account and $105,000 in cash. How should the executor distribute those
assets
100k to H, [A gets book collection, fountain pen belongs to B, ]from here, C gets 5k from chase account as
specific, the left 5k will be ratably distributed between D and C (20k:5k) as general request  C gets 1k and
D gets 4k. Nothing to E because it is abated.
3.H predeceased T. The estate consisted of $200,000, including the book collection (now worth $15,000), the
fountain pens (now worth $45,000), $5,000 in the Chase Account and $135,000 in cash. How should the
executor distribute those assets
A gets collection, B gets pen, C get 5k from account and 5 k from other sources because it is not adeemed, D
gets 20k, 110k to E.
Because Husband predeceases, his portion goes to the estate. (anti-lapse)
4. If ring to A, book to B and residuary to Husband  when wife dies  Husband gets nothing  EPTL 13-
1.3(c)(5) “any disposition to a surviving spouse which qualifies for the estate tax marial deduction  here is no
disposition  therefore husband gets nothing
5.What if husband only get 95k rather than 100k? the rest 5k will be distributed ratably in the class of specific
dispositions.

INCORPORATION BY REFERENCE & POUR-OVER TRUSTS

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A. Incorporation by Reference
1. Definition: When decedent uses terms in the will referring to separate document, whether that
document is part of the will (i.e. a letter) → must jurisdictions allow, but NY DOES NOT ALLOW.
2. Most jurisdictions, unattested papers (papers that weren’t present when will was executed), can be
regarded as part of the will by incorporation if will manifests intent to incorporate that writing
 Example: I give my jewelry to my Ds & Ds in law who are in a list that I will give
separately to my executor
3. However, NOT IN NY  cannot incorporate a writing that’s NOT done according to will formalities
(exception of revocable living trust)
a. Rule in NY: Testator may ONLY incorporate another document by reference IF it is executed
with the formalities as a will §2-1 - EPTL § 3-3.7 (rule from Booth vs. Baptist Church 1881)
b. Can even incorporate portion of spouse’s will determining the residuary beneficiary
i. Example: you did a will, it was attested (witnessed). In that will you said, "I am
leaving my jewelry to the people that are listed on a piece of paper that is stapled on
the back of this will, paper, or you said that my executor is holding, or that is in the top
drawer of my desk, or that is in my insurance policy. And you listed on that paper, the
name of the person you wanted to inherit. This would not be incorporated by
reference.)
i. If you wanted to, you could say, "I give my residuary estate to the persons
who are named as my husband's residuary beneficiaries." This would work
b/c the husband's will was executed with the formalities of 3-2.1. TC 7:55
2/23b
c. §3-3.7 Allows Exceptions:
(1 + 2 are synonymous)
1) Intervivos / Revocable Lifetime (Living) Trust: can direct executor to pay anything
out of your estate from that trust. Income to X with remainder to go to Y upon X’s death.
2) NOT allow to pour over the testamentary trust.
3) "Pour Over Trust": saying that you want your valid lifetime trust to pour over to
someone else; to be sure that nothing is left out of a revocable living trust, a simple
will can be executed that disposes all or some property to a trustee, either of your own
trust or someone else’s.
a. Requirements for Both of the above Trusts:
i. The trust must be in writing and either acknowledged by the
trustee or witnessed by two people.
ii. The trust must be executed before or at the same time as the will.
iii. The trust must be identified in the will w/reasonable certainty.
b. §3-3.7(b)(1) (last sentence) To govern poured over assets, the amendment
must be done with the same formalities as the original trust EPTL§7-1.17
c. §3-3.7(b)(1) The subsequent property added to the Trust will be
administered in accordance w/ the Trust terms as amended in writing
through the date of decedent’s death OR if the decedent says so specifically,
even as amended after his death
d. §3-3.7(b)(1) (second sentence) The will can incorporate the trust even if the
trust is amendable and revocable, although amendments after the
testator’s death are only allowed if the testator says so in the will.
4) If the trust has terminated or been revoked at the testator’s death, the will’s pour-over
directive fails.
5) Acts with independent significance: the meaning of a provision (e.g., “my partners”)
can be supplied from external circumstances referred to in the will only if that
meaning matters apart from its effect on the will (e.g., the partners are business

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partners). (hiring the assistant and give $500 to assistant is independent from
establishing a will with proper execution.)
a. ASK: Is there a reason for doing the thing that is unrelated to your will? If yes,
then it has independent significance & may be incorporated by reference
i. Or ask whether the thing has significance other than just
manipulating the will
ii. E.g., "I give my entire residuary estate to my children." At that
time the T had 2 children. When T dies he has three children. The
third child is incorporated in this will b/c that act, having the 3rd
child, was unconnected with the disposition of your property. The
fact that you had a third child has nothing to do w/ your will.
iii. E.g., “whoever cares for me medically,” who did that look at
external circumstances; but not “the last person to visit me before
death,” because it has no significance apart from effect on will.
iv. If it is just to manipulate the will, the court will not allow it
v. All jurisdictions give effect to devises that identify the
property/devisee by reference to acts and facts that have
independent significance (aside from affect of will)
b. Look at whether act is in testator’s control vs. what is in everyone else’s
control.
c. Examples
a. a testator, who owned a car at the time of the will execution, bequeaths
his motor vehicle to his daughter, but then later gets a truck before his
death. Although the replacement of his car with a truck changes the gift
to his daughter, the replacement is an act of independent
significance because the testator probably got the truck because he
needed a truck—not because he wanted to change his gift to his
daughter
b. I leave $ to whoever is my cleaning lady at my death  This is okay
b/c a person is not apt to change cleaning ladies to manipulate the will
c. I give $ to the last person that I give a flower to before I die Not okay
b/c its very easy to manipulate this
d. Thus a will directing that property be distributed in accordance with the
will of another is effective even if the will of the other person was
executed later  The will of another person is not a testamentary act of
the decedent and therefore has independent significance.
e. HYPO: I make a trust in 2000; then I make my will in 2005. Assume
that in 2002 I amend the trust (before it was payable only to my kids,
then I change it to only 2 of my 3 kids).
i. The 2005 will pours all estate assets into the trust
1. Yes – only the 2 kids get it (valid amendment)
ii. Assume that in 2007, I amend the trust again (changing it to
only 1 kid)
1. This amendment will be allowed – only 1 kid will get it
f. HYPO: Trust created in 2000; amended in 2002; executed will in 2005;
testator died in 2009, but had given her husband (H) power to amend
the trust after her death  Does her money get administered in
accordance with the changes H made after she died?
i. Yes – the trust gave H permission to amend the trust
g. HYPO: I give 5k to my children when I die
i. Valid
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 ii. Act of independent significance = must go outside of the will in
order to determine who the testator’s children are.
h. HYPO: I give 5k to the last person who winks at me before I die
i. Wink has no independent legal significance
ii. Intent of decedent was to give a gift of 5k
1. But we don’t recognize a wink as a valid means of
disposing of property (need witnesses, etc)
2. This person wanted the wink to be incorporated b/c she
wants to dispose of 5k (thus not independent of the
making of her bequest
i. HYPO: I give 5k to anyone who is working for me when I die
i. Valid act of independent significance - other than just
disposing of the 5k
ii. Must go outside of the will in order to determine the identity of
those people who are getting the property
6) A devise “to the persons I name in a separate [unattested] letter to be prepared by me
on a future date” is INVALID
a. Unattested papers  papers that were not present when the will was executed
b. Incorporation by reference unattested papers can be regarded as part of the
will by incorporation
7) No integration under the NY law because NY law requires the signature in the end of
the will and what below the signature is ineffective.

RENUNCIATIONS

A. Renunciation Intro
a. Renunciation= ability to decline to accept something you are entitled to [federal = disclaimer]
b. Definition: A beneficiary can renounce all or part of her interest. § 2-1.11(b)(1).
i. You don’t need to accept property if you don’t want it; reflects policy that ownership cannot
be forced upon transferee and can allow you to pass it to someone else as if you had never
owned the property
ii. Applies to BOTH intestacy & will dispositions
iii. Can renounce WHOLE or IN PART
c. Why would someone want to renounce/disclaim? Tax purposes, avoiding creditors, qualifying for
Medicaid (any govt benefits), allow your spouse to get more, etc.
d. Who can renounce: In limited cases, another person (e.g., a guardian, conservator, etc.) can renounce
for the beneficiary, usually subject to court approval.
e. When you ‘renounce’ a gift, it has the effect as if the renouncing party pre-deceased testator
f. A renunciation is irrevocable. Once you file a renunciation, you can't take it back
i. Note- NY fashions its renunciation statute so that the renouncer incurs no federal tax liability
under the federal disclaimer statutes. Renunciation is also a way to be protected from
creditors.
g. What Can Be Renounced: Almost all dispositions can be renounced, including those under wills,
intestate shares, the granting of a power of appointment, the exercise and nonexercise of a power of
appointment, those under Totten trusts, TODs, life insurance contracts, joint tenancy or tenancy in the
entirety (although not the portion that the renouncing person contributed), employee benefit plans, and
securities. § 2-1.11(b)
a. Exception: you cannot disclaim Medicaid b/c renunciation = refusal to accept gratuitously
transferred property.
b. You can renounce entire interest in property or a part of it.
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 i. Exception: A surviving joint tenant or tenant by the entirety can renounce the
part of JT coming from the other person’s contribution, but cannot renounce part
coming from your own contribution b/c not allowed to give away your own property
w/o paying a gift tax
h. Effect of Renouncing: The renouncing person is considered to have predeceased the creator or
decedent. § 2-1.11(d). (i.e. anti-lapse]
a. Accelerating Interest: if you renounce present interest (in whole/part), you are also renouncing
your future interest. If you have BOTH present & future interest, renunciation of present is
treated as a renunciation of future as well.
b. Cannot extract money from interest whose person’s is to be accelerated in return for
consideration
c. If renunciation causes disposition/distribution by representation, then solely for mechanics of
distribution, renouncing person to be treated as post-deceasing decedent.
d. A person cannot renounce her interest for money, unless the court approves. §2-1.11(c)(2)
e. The renouncing person is considered to have predeceased the creator or decedent. §
2-1.11(d).
1) Distribution per stirpes and by representation: the renouncing party is deemed to
have died immediately before the creator or decedent’s death.
i. In other words, creates a legal fiction where we pretend the renouncing party
died before the decedent & distribute renouncing party’s shares per stirpes to
ensure the renouncing party’s children do NOT get a larger share just b/c it is
by representation.
ii. I.e. Y predeceased D, survived by two children, and that X, who had eight
children, renounced within nine months of D’s death
a. If X were truly dead (not renounced): by representation → Z gets 1/3;
other 2/3 from X & Y combined → split that 2/3 equally between GS
1-10
b. BUT since X renounced, Transforms back into per stirpes just for this
instance → X's GS will each get 1/8 of his 1/3 only!!!
2) The anti-lapse statute applies if the renouncer is the testator’s sibling or issue.
i. E.g., D in her will gave $75,000 to her sister S and the residue to A. S had 4
children & renounced her bequest. S's 4 children get her $75,000 in equal
shares. Anti-lapse → goes to S's issue, split it by representation. (If S were a
friend, anti-lapse wouldn’t apply, and it would pass into residuary and go to A).
ii. And in this case, A does not to pay gift tax as long as it renounced in writing
and within 9 months after the date of disposition (in writing, signed and
acknowledged . If you get the extension from NY court, you still has to pay tax.
iii. On the contrary, if A accept the bequest and then give to his/her children, he/she
has to pay the gift tax.
3) The residue of a residue statute applies as well.
i. E.g., D in her will gave $75,000 to her sister S and the residue to A. Within
nine months of D’s death, S, who had no issue, renounced. Pre-residuary gift
passes into the residuary → A, the residuary beneficiary, gets everything.
4) For future estates: the renunciation has the effect of accelerating the possession of the
interest, even a contingent future interest
i. Rule I: Renunciation will accelerate any subsequent future interests.
a. E.g., If “to X for life, remainder to Y if Y survives X, otherwise to Z,”
then X renouncing accelerates Y’s interest, before seeing if Y in fact
survives.
ii. Rule II: A person cannot accelerate her own future interest 

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 a. A person who has both a present and future interest and renounces the
present interest in whole or part shall be deemed to renounce the future
interest to the same extent.
i. Ex: X’s grandfather made a trust to pay the income to X until
the age of 35, then remainder to him at that time. If X renounces
his present interest, he renounces his remainder interest to the
same extent (here – he entirely renounces both interests.
ii. Ex 2: Trust gives 10k to son & residuary goes into trust to pay
income to son for life and then to his issue when he dies. If son
renounces the 10k, federal law says that the renunciation is not
valid b/c the renounced property must pass to either testator’s
spouse or someone other than the disclaimant. Here it would
pass to the disclaimant. NY says that if you renounce your
present interest then you renounce the other interest b/c cannot
renounce the 10k then enjoy income in that Trust
iii. Rule III: Renunciation has the effect of accelerating the possession or
enjoyment of subsequent interests UNLESS the vesting of a future
interest/estate is contingent on some event other than the renounced interest
a. Ex: X’s grandfather made a trust to pay income to X for life, then
income to Y for life, then remainder to Z. X renounces. What result?
b. ONLY Y’s interest is accelerated (not Z’s)
iv. RULE IV: If you renounce under a will and the gift lapses – you do NOT get
the gift under intestacy either  the disposition is deemed to have lapsed for
both purposes
v. Can a guardian renounce a child’s interests? Yes with a court order—but
doesn’t seem like good policy
5) Different Effect for Spouses – spouse, if renounces gift in whole/part, can still get future
gifts for her benefits/even though it passes into trust which she has an interest.
i. Will says I give $100 to W, and residue to trustee to pay income to W for life
and remainder thereafter to the Red Cross. W can renounce the $100, and still
enjoy the income from it once it goes into the trust for life from that property.
Everyone else, other than the spouse, can NOT do th
i. Federal Disclaimer Statute: don’t have to pay federal taxes on what you renounce IF valid disclaimer
that
i. Irrevocable
ii. Unqualified
iii. In writing
iv. Must not accept any interest/benefits
v. Interest must pass without direction by disclaimant to either transferor’s spouse OR person
other than disclaimant
vi. File in the office of the clerk having jurisdiction over the will or trust governing the property
or if there is no prbate then in surrogate’s court provided by the law.
vii. Filed in 9 months from time of transfer OR disclaimant’s 21st birthday
a. New York does not have 21 birthday requirement
b. New York Court can extend the time to renounce for reasonable cause, including:
i. Decedent was a minor who renounced within 9 months after her 21st birthday
ii. “Grief and shock” caused by the beneficiary’s loss of both her parents within 6
weeks constituted reasonable cause
iii. The beneficiary did not know the extent of the encumbrances on the property she
was supposed to inherit
iv. The beneficiary did not know the value of the property she was to receive
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 c. However, if a New York court allows a person to disclaim more than nine months after
the transfer (or the beneficiary's twenty-first birthday), it will constitute a gift (for gift
tax purposes) to the person who gets the property as a result of the disclaimer, but it will
successfully insulate the property from the disclaiming party's creditors
j. Renunciation of Property Interests [2-1.11]*** What we use
a. Disposition includes: will, Totten, Power of Appointment, Insurance policy, joint tenacy,
retirement/employee benefits, any trust, disposition or by operation by law.
b. General Rule: any beneficiary can renounce a disposition (that he has yet to accept) in
whole or in part. EXCEPTIONS
i. Surviving joint tenant/tenant by entirety may not renounce that portion of an interest
which is allocable to amounts contributed to him
ii. Interest is considered accepted if person voluntarily transfers, encumbers or contracts
to do either, accepts delivery/payment of exercises control over, executes a waiver or
indicates acceptance of the interest
iii. Can renounce to avoid creditors but cannot renounce to be eligible for government
benefits (i.e. Medicaid)
k. Procedure for Renunciation:
a. Must be: in writing, signed, acknowledged, accompanied w/affidavit that renouncing party
has and will not received any consideration and filed w/in 9 months after effective date of
disposition and with notice served to all interest parties of renunciation
l. When does the 9 months start to run?
a. Most often – when the testator dies
b. If interest is created under a will  date of death of testator
c. If interest is created under testamentary trust (trust that starts after death)  date of death of
testator
d. An interest from an intestate share  date of decedent’s death
e. If interest in life insurance  date of death of insured
f. If interest in jointly owned property with right of survivorship  date of death of other joint
tenant OR 9 months from the creation of the tenancy
g. If interest in pension or retirement plan  date of death of employee
h. If interest in Totten trust bank account, or TOD brokerage account  date of death of creator
of trust account (decedent)
i. If interest is created by a testamentary power of appt  date of death of the holder of the
power
j. If interest is created by a presently exercisable power of appt  date the power is exercised
k. An interest obtained in default of someone’s exercise of a testamentary power of appt 
date of death of power-holder
l. An interest obtained in default of someone’s exercise of a power of appt presently
exercisable  date the default taker is entitled to the property
m. An interest acquired b/c someone else renounced  date of the renunciation
n. An interest in a lifetime trust (refers to a present interest)  date the trust become
irrevocable (date of creation if it was irrevocable when made)
o. A future interest in a trust  the date it becomes possessory
p. This statues differs from the federal once, permits a remainderman to renounce his interest
within 9 months after it becomes an estate in possession (typically, after the death of the
income beneficiary
i. Ex: Grandmother created a trust in 1990, to pay income to her daughter for life,
remainder to her granddaughter. Daughter died in 2012.
1. The granddaughter will have 9 months after the daughter’s death to renounce
q. Examples:

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 i. Ex: My grandfather gave me the power to appoint the remainder of his trust Income
to me, then I get to appoint the remainder
1. I exercise it in favor of my friend F by executing a “deed of trust,” which is
how my grandfather directed
a. F gets 9 months from today to renounce (date from when I exercise
that deed of trust)
2. If I exercise it in favor of my friend F by executing a will
a. F gets 9 months from the date of my death to renounce
ii. Ex: I made a Totten Trust in 1995 payable on my death to my friend F
1. F gets 9 months from my death to renounce
iii. Ex: I die intestate today with one intestate distribute
1. That distributee gets 9 months from today to renounce (date of my death)
iv. Ex: in 1995, I bought a 1M life insurance policy on my life payable to F
1. F gets 9 months from my death to renounce
v. Ex: in 1995, I started a job that had a retirement plan, and I designated F as my
beneficiary
1. F gets 9 months from my death to renounce
vi. Ex: On Jan. 1, 1995, I created a joint bank account and named F as joint owner
1. F gets 9 months from Jan 1, 1995 and again 9 months from the date of my
death to renounce
B. Examples
1. D’s will gave $75,000 to X if X were alive at D’s death. If X were not, D gave the $75,000 to Y.
Within nine months of D’s death, X renounced his bequest. What result? Does it matter if Y is X’s
son?
 Y gets the $75,000.
 Authority? EPTL 2-1.11(a)(1), (e)
 Does it matter if Y is X’s son?  Anti-lapse doesn’t apply. Y gets it because D said so.
2. D’s will gave $75,000 to her sister S and the residue to A. S, who had four children, renounced her
bequest. What result?
 S’s four children get her $75,000 in equal shares ($18,750 each).
 Authority: EPTL 2-1.11(e) and 3-3.3
3. D’s will gave $75,000 to her sister S and the residue to A. Within nine months of D’s death, S, who
had no issue, renounced. What result?
 A gets S’s $75,000.
 Authority: EPTL 2-1.11(e) and the common-sense tenet that a lapsed pre-residuary gift
becomes part of the residuary estate.
4. D’s will gave $75,000 to her friend F and the residue to her husband H. Within nine months of D’s
death, F, who had four children, renounced her bequest. What result?
 H gets it all
 F is treated as having predeceased the decedent, and because she is not within the anti-lapse
statute, it passes into the residuary estate.
5. X’s grandfather made a trust to pay the income to X for life, remainder to Y. Within nine months of
his grandfather’s death, X renounced his income interest. What result?
 The remainder to Y is accelerated.
 Subparagraph (e) approx. line 9.
6. X’s grandfather made a trust to pay the income to X for life, remainder to X’s child Y if Y were alive
at X’s death, or if not, remainder to Habitat for Humanity. Within nine months of the grandfather’s
death, X renounced, survived by Y. What result?
 Y gets it (subparagraph (e) approx. line 9).
7. X’s grandfather made a trust to pay the income to X for life, then income to Y for life, then remainder
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 to Z. Within nine months of his grandfather’s death, X renounced his income interest. What result?
 Y’s interest is accelerated but Z’s is not (subparagraph (e)).
8. X’s grandfather made a trust to pay the income to X until he reached the age of 35, then remainder to
him at that time. Within nine months of his grandfather’s death, X renounced his income interest.
What result?
 He has renounced his remainder interest as well. Subparagraph (e), last sentence.

T’s will gives $3,000 to be shared by his three sisters.
His sister S, who has two children, N and N2,
disclaims her gift. S’s kids and her sisters both claim
S’s share. Who’s right
Take #1 a little further. Assume that T’s sister S-2
predeceased T leaving three child. When S renounces,
who gets what
2-1.11(c)(1) [she can renounce] and (b)(1) her
bequest predeceased  Anti-lapse 3-3.3 S’ kids
get S’s share
S’s three kids share her one-third, subpara (e) of 2-
1.11 (not the “if pursuant to the preceding sentence,
ther would occur a per stipes disposition of the
renounced interest  for 2.14 per stirp and 2.16 per
representation treating the renouncer died after the
testator  then 1/3 anti-lapse to S’s kids and S-2’s
three children get the S-2’s 1/3 share.

2b. T’s will gives $3000 to be shared by his issue. His This is not class, don’t need 3-3.3.
child C, who has two children, GC and GC2, disclaims GC and GC2 share one-third. GC3 gets one-third. C3
her gift. His child C2 predeceases, leaving a child, gets one-third. (if pursuant .. renounced interest by
GC3. His child C3 survives, who gets what? representation, the renouncing person shall be treated
as having died (setting the share purposes) on the
same date as, but immediately after the creator or
decendent. (children have to stuck to your share,
cannot be used to manipulate or to enlarge the share)
3T’s will gives $2,500 to her friend F and the residuary NC (anti-lapse does not apply because F is the friend)
to the Nature Conservancy. F renounces, leaving two  go to the residuary  F’s children get nothing
children. Who gets what
4.G made a trust to pay income to F for life, remainder (e)’s “if the renounced interest is a future estate, as
to X. F is 55 years old, X 22. If F disclaims his having died on the same adate as, but immediately
interest, who gets what, and when after , its becoming an estate in possession or, if the
time of filing is earlier in the time… such filing  X
will get the funds in the trust immediately.
5. G made a trust to pay income to F for life, Her four children get the remainder of the trust as
remainder to F’s children alive at F’s death, or if none soon as she renounces  even the testator expressly
are, to the Nature Conservancy. F renounces her put the condition.
interest at a time when all four of her children are First child’s predeceases does change anything.
alive. Who gets what, and when? After that, add the Too bad for the other three children, every children
fact that F’s first child (after F’s disclaimer) gets one-fourth.
predeceases her
Free market of property. Too bad for the Nature
conservancy.
Assume T’s will gives $100 to his son and his If S renounces his preresiduary gift, he
residuary estate ($500) to his brother as trustee, to automatically renounces his income interest from
pay …… to pay income to T’s son S for life, that $100
remainder at S’s death to S’s kids then alive

Assume T’s will gives $100 to his spouse and his So she can get the income from the whole $600
residuary estate ($500) to his brother as trustee, to trust even if she renounce $100 income
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pay …… to pay income to T’s spouse for life,
remainder at the spouse’s death to S’s kids then
alive

G makes a trust, income to A for life, remainder to
B. A agrees to renounce her interest in exchange
for $25,000 from B.
No!!! because one condition of an effective
renouncement is that the disclaimer cannot receive or
not to receive any consideration in money or money’s
worth for such renuniciation from a person or persons
whose interest is to be accelerated.

PRESUMPTION OF DEATH & MURDEROUS HEIRS

A. Presumption of Death [2-1.7]
1) Person is presumed dead if:
i. Missing for a continuous period of 3 years, AND
ii. Diligent/exhaustive search was made (like fbi), AND
iii. His absence cannot be satisfactorily explained by another circumstance/reason
2) In this case, the court will presume that she died three years after the first day that she went absent/most
probable date of death as explained by evidence, UNLESS: (exceptions)
a. If person was exposed to specific peril of death, can determine date of death earlier than 3
years (death on date of peril)
i. Boating accident, plane crash
ii. 9/11 – instead of diligent search, court allowed affidavit by wife saying person left for
work, employer said person worked there—this special circumstance is only for those
who worked in WTC, not near.
b. OR on earlier date that clear & convincing evidence establishes probable date of death (no
specific peril but look to person’s character)
i. Matter of Constantino: truck driver - found truck with door open, never returned
home and body never found in Bronx. Court determined that this would be clear and
convincing evidence of death (i.e. specific peril).
3) Shit out of luck: Tom Hanks- Castaway- If you (the missing person) return and find that your estate has
been distributed, you can demand an accounting and get back ONLY that which the fiduciary still has in
his possession
4) Declaration of Death acts as a Death Certificate and can be offered in its place for all purposes
i. Very difficult to get a court to declare a person dead.
ii. Classically looks at a persons’ frame of mind→ was he depressed, talking about the future,
happy, was he in financial trouble?
5) Understanding the statute: Usually invoked to someone who went out on a small boat and was never
hear from again. The family knows in their hearts that their loved one is dead but cannot prove it. The
statute above was created for that purpose.
6) If you can’t satisfy this statute, SCPA article 9 is a procedure for temporary administration. This allows
for the appointment of a fiduciary for an absentee (temporary administrator) → appointed to administer
and to keep things running e.g., bills, premiums. At the end of 5 years you can distribute the persons’
estate. It’s not that the person has been declared dead but for convenience sake you can distribute the
estate.

B. Murderous Heirs ‘cannot profit from your own wrong’

1) General Rule: A wrongdoer cannot profit from her wrong. Riggs v. Palmer.
a. A murderer CANNOT take property from a decedent if his murder caused or hastened his
disposition or distribution.

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 b. A murderer also cannot take if he kills, other distributees or beneficiaries, such that he takes what
they would have taken. See Macaro, M killed S, so he would take all of Ds estate
c. Anti-lapse & Residue rules determine who takes instead. (Killing the testator is NOT the
equivalent of predeceasing the testator for the purposes of the anti-lapse statute)
d. Alternate beneficiaries of both spouses who make a joint will can take if one spouse kills the
other and then himself.
i. Covert, H & W had joint will leaving 1/3 to his family, 1/3 to her family, 1/3 to siblings.
His family should still take. Where a victim's will makes bequests to a wrongdoer's family,
their status as legatees under the victim's will is not vitiated, and they are not disinherited
by virtue of their familial relationship to the wrongdoer
2) Disqualification of Joint Tenant in Certain Instances (4-1.6)
i. if Joint tenant convicted of either 1st or 2nd degree murder of fellow joint tenant, he shall not be
entitled to any money in joint bank account created/contributed to by deceased joint tenant,
except for the money the convicted joint tenant contributed
1. don’t allow wrongdoer the deceased’s ½ or whole bank account. Only the money the wrongdoer
contributed to the bank account is given back to him.
2. Killer is treated as having predeceased decedent for purposes of allowing killer’s interest to pass to
surviving descendants, if any
ii. Neiman v. Hurff: Murderer will not forfeit anything that was his own property to begin with,
but by killing his wife he forfeited any rights to her property so he forfeits his right to enjoy
survivorship right
1. Treat Murderer as having died first and presumed that decedent would’ve survived her husband
(her killer)
2. Cannot take H’s interest so he is entitled ‘to commuted value of ½ interest’ he has in the house for
the remainder of his life [presumed to die before W to make sure he doesn’t profit]
3. The way we prevent his profiting is to assume she had survived him. He has a right to the house
and the securities for the rest of his life. He has to forfeit the rest. He got the life estate for his
half in property. → NOW have to figure out how old he is and how much longer he is expected to
live.
4. To what extent would inheritance be a “profiting?” You can’t take away his half because he is
entitled to his half. Punishment comes from criminal law not the EPTL. Instead his profiting
would come from taking what she would have gotten had she died last. He took that chance away
from her. Thus, we assume she survived him! In that way, he would not profit from his
wrongdoing.
iii. Matter of Covert: family doesn’t forfeit from wrongdoing of their family member regarding
joint bank accounts.
a. Facts: H killed his wife in a murder-suicide. The will on the 1st level gave property to
each other when one died and when the second spouse died, the rest would be devised
among each parents and siblings equally.
b. Issue: Can the H’s parents and siblings profit from H’s wrong?
c. LC Held: Yes, they are innocent! Therefore, they are entitled to the share that was his
and he did not forfeit.
d. CofA Held: Affirmed & said to distribute the estate in the manner the wills direct and
insurance to the alternative beneficiaries so H’s family can take.
i. Bound by the Riggs – estate should include the family of the wrongdoer. Are not
going to automatically disqualify innocent relatives of the wrongdoer.
ii. It would be wrong to force the estate in intestacy
iii. Refused to treat W as if she survived him. Therefore, CofA let pension and
insurance pass to his family.
iv. H forfeited the joint property.

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 e. If he didn’t commit suicide H would have received ½ the commuted value of the estate
and the remainder would go to W’s beneficiaries.

iv. Matter of Mathews: slayer doesn’t forfeit his own undivided interest in property which couple
held as tenants by entirety. Surviving tenant, whose property rights may not be diminished by
reason of a criminal act, is entitled to the commuted value of a life estate in ½ of the property or
proceeds from its sale
i. Husband murders wife—then sells home that he and wife had owned as tenants by the
entireties
ii. Court stated that survivor is entitled to ½ of the property, with some of that ½ being
passed to the residuary beneficiary – commuted value. The ½ that survivor didn’t take
also went to the residuary
v. Matter of Gulbrandsen Communited life estate doctrine
i. Where a wife kills a husband with whom she jointly owns a house; ct gave the killer the
commuted value of a life estate in 1/2 of the property or proceeds of the property
ii. Just result: the killer deprived her husband of his chance to survive her, so if the court
treated her as the survivor, or allowed her take half of the house, she would have
profited from her wrong.
iii. B/c Wife killed husband, they computed an amount representing the wife’s life estate in
the house.
3) Trusts:
i. If a murderer has a remainder interest in a trust and kills the person whose death accelerates the
remainder, then he should only take the portion that he would have taken had the person he killed
died when expected, actuarially adjusted.
a. EX1., G makes an irrevocable transfer in trust directing the trustee to pay income to A for
life, and at A’s death, to distribute the corpus of the trust to B. B kills A. Should A’s estate
be able to obtain an amount equal to the present value of the income interest based on A’s
life expectancy.
i. If yes – B profited for killing A
ii. Acceleration of that interest was a profit that resulted from B’s wrong
iii. B should not have to forfeit the remainder he would be entitled to if A had lived
1. Remainderman (B) would have gotten the remainder at the income
beneficiary’s death (A) whether or not he killed A
iv. Tough question when would you give it to B? If you subtract that now and give
the remainder to B now – that seems like a profit
v. Court should commute the value of the life estate and give it to A’s estate

b. Ex2: Same facts as above, except the trust directs that if B fails to survive A, the corpus
should be distributed to C. Should A’s estate be able to obtain an amount equal to the
present value of the income interest based on A’s life expectancy or should C receive the
entire corpus?
i. Is B profiting? B clearly altered the natural course of events (but anything could
have changed the course of events)
ii. Remainderman (B) shouldn’t get anything b/c he had to survive the income
beneficiary and he thwarted the plan by killing her
iii. Should the remainder be accelerated and paid to C?
1. Tough question
2. If a stranger had killed A, C would have gotten it now
iv. Either give it all to C or give A’s estate his life interest
v. Most courts would give it to C

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 4) NEW YORK: Riggs you can’t benefit from your wrong. if you are a beneficiary to the person you
killed, you can’t receive under his or her will.
a. Understanding 4-1.6Extremely limited!!
i. murder one
ii. murder two
iii. only for joint tenants (bank account or property).
iv. Murderer is allowed to get back what he has contributed.
a. Policy: The criminal law punishes you for your wrong…BUT should not have to
give up what you put in. HOWEVER, if the deceased had a shot at surviving the
murderer, then he/she would have gotten it all. SO the murderer took away their
chance of surviving and should not be able to get all the money
v. Everything else is left to case law.
C. Examples
1. H killed W in a murder suicide. Will gave property to each other and when 2nd spouse died to the parents’
of each spouse equally.
i. H’s parents CAN take b/c they are innocent (they did not commit the crime and H is not benefiting)
o Would be wrong to force the estate into intestacy
o If H didn’t commit suicide then he would’ve gotten ½ of the commuted value of the estate and
the remainder would go to W’s estate
2. X killed his 2 brothers so when his father died he would get a larger portion of his estate
i. Court did not allow him to inherit b/c he would be benefiting from his wrong
3. G purchases insurance policy on her own life and irrevocably names X as primary beneficiary of
proceeds. X feloniously and intentionally kills G. Matters if X had to survive G.
a. -It matters if X had to survive G
b. If X has to survive G – X doesn’t get the proceeds
i. They pass to the alternate beneficiaries
c. If X didn’t have to survive G, perhaps reduce the proceeds by the present value of the policy based
on G’s life expectancy.

MULTI-JURISDICTIONAL ESTATES [3-5.1]

A. Policy: Wills and trusts are state driven. Thus, we need a conflict of laws to resolve many issues so we know
what law to apply when the issue arises.
i. What law applies AND what wills are going to be admissible to probate!
B. Definitions
(1) Real Property: land, estate in land, leaseholds, fixtures/mortgages, liens
(2) Personal Property: everything besides real property (tangible/intangible things, stocks]
(3) Formal Validity: formalities requirements prescribed by law of jurisdiction for will execution (i.e. 2
witnesses present, etc.)
i. Refers to the statute of wills, due execution formalities
(4) Intrinsic Validity: legality of testamentary disposition/rules of substantive law of jurisdictions that
determines legality of testamentary disposition (testator’s capacity)
i. Includes undue influence, fraud, testamentary capacity
(5) Effect: legal consequences of statutes to valid testamentary disposition (i.e. valid dispositions that an
effect would occur; anti-lapse, spousal right of election, simultaneous death, afterborn children
etc.)
(6) Interpretation: language of the will and what it means
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 (7) Local Law: law which courts of jurisdiction apply
C. General Laws [3-5.1]
1) Real Property (b1) – means any land or estate in land, including leaseholds, fixtures, mortgages or other
liens; Personal property means other than real property (tang & intang) (a). Other than that, whether
property is real or personal is determined by the law where the property is located. (i).
a. Real property= formal validity, intrinsic validity, effect, interpretation, revocation or alteration of
disposition/intestacy are all determined by law of jurisdiction in which the LAND is Located*
i. E.g.,T leaves his Connecticut house to his daughter and then attempts to revoke.
Connecticut law governs the effectiveness of the revocation.
ii. E.g., T leaves his Connecticut house to his brother and the brother predeceases him
leaving issue. Connecticut law governs on anti-lapse.
iii. If you have real property in NY, formal execution is met (the will is valid) if: (i)
executed in accordance with laws of NY, (ii) jurisdiction where will was executed, OR
(iii) where testator was domiciled  either at the time of his death or time of execution
2) Personal Property (b2) (movable) – No formal validity but intrinsic validity, effect, revocation of
alteration of a disposition/intestacy are determined by law of jurisdiction in which decedent was
DOMICILED AT DEATH
i. Will disposing/intestacy of personal property, valid where T was domiciled at time of death
a. E.g., W is a New Yorker. She has her entire $1,000,000 estate in a brokerage house in
California. She leaves her entire estate to her daughter. H wants to elect against the
will. NY law governs.
ii. The interpretation of a will disposing of personal property is governed by the law where the
testator was domiciled when the will was executed. § 3-5.1(e).
5) Formal Validity (c)
a. A will disposing of personal property anywhere OR real property in NY (made within or without
NY by a domiciliary or non-domiciliary thereof) is formally valid in NY, if it is: (i) in writing, (ii)
signed by testator, & (iii) otherwise executed/attested in accordance with law of:
a. NY;
b. Jurisdiction which will was executed at time of execution; OR
c. Jurisdiction where testator was domiciled (at time of execution OR death)
 Since has to be in writing, can’t have nuncupative wills that are valid in other
states, only nuncupative wills allowed are those valid in NY
i. Thus, as long as it’s valid in the place the will was executed or where T
died, a holographic will can be admitted to probate in NY if valid in other
state since it’s in writing + signed BUT not a nuncupative will!
ii. E.g., T, a domiciliary of Alabama, executed a will disposing of New York
real property. Although only one witness attested to T’s signature, the will
was formally valid in Alabama at the time she executed it. Can the will be
admitted to probate in New York? Yes: will was executed in Alabama & T
was domiciled in Alabama at the time of executio
6) Intrinsic Validity of Personal Property [Change in Domicile] (d)
 Testamentary disposition of personal property, intrinsically valid under law of jurisdiction in
which testator was domiciled at time will was executed shall NOT be affected by any
subsequent change in domicile of testator to jurisdiction by law of which disposition is
intrinsically invalid
o If legal in one place & illegal in another  law of jurisdiction domiciled in at time of
execution
7) Interpretation of Disposition of Personal Property (e)
 Determined in accordance with local law of jurisdiction in which testator was domiciled at the
time will was executed

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 o Ex: what issue means determined by local law where T domiciled at time he executed
will
o E.g., T made a bequest to "issue" in a will executed while he was a Georgia
domiciliary. He died a New York domiciliary. Are out-of-wedlock children included?
This is a question of interpretation, what does the word "issue" mean? Georgia law
governs b/c will was executed there.
8) Revocation/Alteration of Disposition of Personal Property (f):
 To effectively revoke disposition of personal property by subsequent testamentary instrument
or physical act – determined by law of jurisdiction in which testator was domiciled at time the
subsequent instrument was executed or physical act was performed
 Exception: implied revocation (such as the effect of divorce or after-born children) is still
covered by (b)(2) – where T domiciled @ death.
9) Power of Appointment over Personal Property: (H)
 Intrinsic validity, effect, revocation or alteration of disposition by which power of appointment
is exercised & whether such power should be exercised at all, are determined by
o Presently exercisable power [jurisdiction which donee was domiciled @ death]
o General Power:
 Created by will (gift effective at death) – jurisdiction which donor was domiciled @
death
 Created by inter vivos disposition (gift made during lifetime) – jurisdiction in
which donor intended to govern such disposition
 If donor = donee of general power exercisable by will alone – jurisdiction in which
donor was domiciled @ deathChoice of Law in the Will
 Whenever testator, not domiciled in the state at time of death, provides in his will he elects to
have disposition of property situated in the state governed by NY laws, then all issues of law
are determined by laws of NY
o Exception: formal validity, otherwise when testator was not domiciled in this state at
time of death can elect to have NY law apply
10) If fixtures/leaseholds/liens are considered personal property in state where house/apartment building is
located, that jurisdiction prevails [NY doesn’t apply]

Section Property Type Concerning: Governing Law:

b.1 Real Property Everything about it Where land is located
b.2 Personal Property (Formal validity & Domiciled at Death
Interpretation NOT included)
can include revocation such
as revocatatory effect of a
divorce or an after-born child
( by operation of law)
c. Personal Formal Validity depends on NY
Propertyanywhere if:
1. In Writing & Signed AND
or 2. Executed properly in:
i. NY State
Real Property in NY ii. Juris. Where will
was Executed; OR,
iii. Jurisdiction Where
T was domiciled at
either:
a. Death or
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 b. Time of
execution
d. Personal Property Where Will was Intrinsically Will remain valid even if it is
Valid under the law in which invalid under the law in which T
the T was domiciled at time was domiciled at death.
of Execution
e. Personal Property Interpretation Domiciled at execution
f. Personal Property Validity of Revocation or Subsequent Instrument 
Alternation: Depends on Domiciled at time 2nd
instrument was executed
Physical Act  Law where act
was performed
i. Real Property Definition of: Where land is located
(h.) You can bring your property into NY an opt for application of NY law and opt for probate in NY. You
are not relegated to your own jurisdiction.
 The will can elect to have the disposition of property in NY governed by NY
law irrespective of where it was executed or where the testator was
domiciled EXCEPT for the law on formal validity See § 3-5.1(h).
 E.g., An LA domiciliary could put her $$ into a brokerage house in NY
direct in her will that NY law apply (avoid civil law req to give something to
the kids or estate taxes).

D. Examples (look at slides too!)

1. D, a New York domiciliary, had valuable furniture in his home in Pennsylvania. In his will he gave it to
his sister S. D’s wife W wants to elect against D’s estate, including the house and furniture. What law
governs?
1. NY law governs for personal property; PA law governs for real property.
2. D, a New York domiciliary, owned a summer home in Pennsylvania. In his will he gave it to his son, S.
Later, he tore up the will with the intention to revoke it. What law governs the effectiveness of the
revocation?  PA law governs.
3. D, a domiciliary of Alabama, executed a will disposing of NY real property. Although only one witness
attested to T’s signature, the will was formally valid in Alabama when she executed it. Can the will be
admitted to probate in New York?
2. Yes. Jurisdiction where the will is executed or domicile when executing the will  all Alabama
4. Would your answer be the same if his will disposed of real property located in Nevada?
3. No – real property is always governed by the laws in which the land is situated.
5. D made a bequest of personal property to his "issue" in a will executed while he was a Georgia
domiciliary. He died a New York domiciliary. What law governs the issue of whether non-marital
children can share in the bequest?
4. Interpretation – Georgia law applies. (domicile when execution)
6. When T was an Alaskan domiciliary, he executed a will disposing of his personal property. Later he
moved to Hawaii and revoked his prior will by writing a new one. He finally died domiciled in New
York. What law governs the revocation?
5. Hawaii law governs. (domicile at revoke)
7. T left personal property to an organization which fosters an activity legal in the jurisdiction where he was
domiciled when he made his will. He then moved to New York where such an activity is illegal. Would
his will be given effect here?  Yes. 3-5.1(d) : a testamentary disposition of personal property
intrinsically valid under the law of the jurisdiction in which the testator was domicile at the time the
will was executed shall not be affected by a subsequent change in the domicile of the testator to a
jurisdiction by the law of which the disposition is intrinsically invalid.
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 8. Example 8: D was domiciled in Arkansas. He validly executed a will there disposing of personal
property without signing it. He then moved to New York, where he died. Can his will be admitted to
probate in New York?
i. ANSWER: No (subparagraph (c)). Must be signed and in writing & one of three in order to be
admitted in NY
ii. §3-5.1 is broad, but not broad enough to allow unsigned wills
iii. Nuncupative oral wills are not allowed to probate in NY, unless it is done by soldiers.
iv. §3-5.1 doesn't allow nuncupative wills, it can be valid only under §3-2.2

Assume that T signed his will, was a New York domiciliary when he died unless the question says otherwise.
In some questions, you may be able to answer the question in part but need more information to get to the
bottom line.
1.T’s will gave his house in Montana to his friend F and then attempted to revoke that gift. What law
governs the effectiveness of the revocation
3-5.1 (b)(1) – Montana law govern revocation of the real property.
Is sub(f) relevant?  no, (f) deals with personal property.
3-5.1 (f) : revocation is governed by the domicile in which when the subsequent act or revocation is made. v.
3-5.1 (b)(2) revocation is determine by the law of the jurisdiction in which the decdent was domiciled at
death (only applies to the automatic operation of law to revoke  very narrow. The other is under (f).
2.T’s will gave his house in Montana to his daughter D, all the books in that house to his son S, and the
residuary to the Nature Conservancy. Later he crossed out the gifts to D and S, intending to revoke them.
What law governs the effectiveness of the revocation
 The revocation of house is governed by the Montana law under 3-5.1(b)(1)
 Personal property, effect of revocation by act  go to (f) his domicile when he done the act of
revocation (cross out)  New York (if she is NY domicile when he did that act)  under NY law does
not allow partially crossing out of the will.
o If she domicile in the Montana, then Montana law governs.
3.T’s will gave his house in Montana to his daughter D and all the books in that house to his son S. They each
predeceased him leaving issue surviving him. What law governs on anti-lapse
 House Montana law.
 For the books, Interpretation  in which the testator was domiciled at the time the will was
executed  NY by representation
4.T’s estate consisted largely of a portfolio of stocks and bonds in a brokerage house in Montana, worth
$300,000. Her will left everything to her friend F and nothing to her husband. What law governs her
husband’s right to elect against the will
Personal property  New York law applies (b)(2) because right of election is effect
5.Because she’d moved just before her unexpected death, most of T’s real and personal property was situated
in Montana. Her will gave her entire estate to her Uncle U, who predeceased T, leaving four children
surviving. What law governs?
Real property  Montana law § 3-5.1(b)(1)
Personal property  juris in which T’s domicile when the will is executed NY  no anti-lapse for uncle,
 Assume no antilapse provision in M, then pass through M’s intestacy law
 Assume Montana has an anti-lapse statute that saves gifts to brothers, sisters, and issue  uncle is not
within the scope of M’s anti-lapse statute  the property passes under M’s intestacy laws.
 Assume Montana has an anti-lapse statute that saves gifts to brothers, sisters, aunts, uncles and issue
 to children of uncle gets the real property
6.T’s will left her vacation house in Montana to her daughter and the residue, including personal property, to
X. She executed her will before one witness while vacationing in Montana. Montana required one witness for
a valid will. Can she probate her will here? What law applies on the will’s intrinsic validity
Real property  law of juris in which the land locates § 3-5.1(b)(1)  formal valid M’s law  (c) allows
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to probate property
Probate and admitted under NY according to § 3-5.1(c) because it is valid in accordance to the local law of
the juris in which the will was executed, namely Montana. ((1)NY, Jurisdiction at the time of execution
“M”, (2)domicile when death or execution, (3)jurisdiction in which the will was executed)
What law applies to the intrinsic validy
RPM law
Personal property NY law.

SPOUSAL RIGHT OF ELECTION

A. Introduction
a. Spouses get different amount depending if you’re intestate [Spouse gets everything or $50k + ½ if
kids are involved], disinherited [can still get 1/3] or by will
b. Marriage is economic partnership with each spouse entitled to a near equal share of marital property
i. 5-1.1A Right of Election by Surviving Spouse (Spouse is Disinherited)
c. What would you do if you found out that your spouse completely disinherited you? Is your spouse
entitled to a portion of your inheritance? It is imperative to know your rights as well as your
obligations under New York’s spousal right of election laws outlined in EPTL 5-1.1A.
i. General Rule: A spouse can elect against a will that gives her less than 1/3 of her deceased
spouse’s estate greater of 50K or 1/3. § 5-1.1-A. (Intestacy: $50,000 + half)
1) If decedent is survived by spouse, spouse has right of election to take share of
decedent spouse’s estate
i. Decedents estate includes capital value & property PLUS
ii. Elective share is amount = to or > of $50,000 OR 1/3 entire estate
iii. Estate does NOT include debts, administration/funeral expenses
 I.e: assume husband had 600K and wife had 0. When husband dies, she will
get 200k (1/3 of husband’s money)
 I.e: assume husband has 600K and wife has 100k. When husband dies, she
will get the 200K (1/3 of hubbys money) PLUS her own money—so she
would end up with 300k.
i. The surviving spouse is given a right under EPTL 5-1.1A to take the greater of 1/3 or
$50,000 from the decedent’s “net estate” which is defined as the probate estate plus
“testamentary substitutes” under the statute. This includes assets passing under a last will
along with jointly owned property and bank accounts, payable on death accounts (POD),
assets held in a living trust, assets with beneficiary designations, and gifts made by the
decedent within one year of death
ii. Even though W breaks will by claiming right of election, she takes as a beneficiary of the
estate and comes after creditors BUT beneficiary gets to decide if contribution will be made
in cash or specific property. The Wife/Husband ONLY gets to elect—doesn’t get to choose if
he/she wants cash/specific property that was gifted to someone else
iii. If the decedent did not leave a will, and their assets pass under intestacy, the right of election
still exists.
iv. If the spouse’s right of election would result in a greater inheritance than intestacy, she/he
has the right to exercise it.

B. Calculating the Spouse’s Elective Share:

1) First, Calculate the net estate  Deductions:
i. Deduct debts, administration, and funeral expenses
ii. Deduct exempt property
iii. BUT don’t deduct estate taxes, so that the wife can take full advantage of the marital
deduction (i.e. anything that the spouse receives outright).
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2) Second, Calculate the net estate Add Any Testamentary Substitutes:
i. General rules:
a. Even testamentary substitutes in favor of the spouse count.
b. Generally (except for under (G)) an irrevocable transfer only counts if it was made
after the marriage.
o A revocable transfer is always a testamentary substitute, irrespective of
whether it took place before or after the marriage
ii. Kinds of testamentary substitutes: (these get added back into estate for election ((for the math:
net estate estate + any testimantary subsititues and then divide it by 3 and then subtract
anything she received absolutely, through will, or through intestacy) Inter Vivos Gifts
Treated as Testamentary Substitutions: the following will be treated as testamentary
substitutes, and included in the net estate whether benefitting the spouse/any other person and
shall be included in net estate subject to spouse’s right of election ((life insurance is NOT a
testamentary substitute))
i. Gift Causa Mortis: gift made in contemplation of death that’s automatically revoked if
donor survives, made when T is alive
i. E.g., H made a valid will leaving his wife $1 and giving the residuary estate to
Habitat for Humanity. Before going on a trip around the world last year, he gave
$1,000,000 to his friend F, with a proviso that that he wanted it back if he
returned safely from his journey. He did not survive the vacation. He died with
an estate of $1,000,000. What, if any, right does W have to elect against the will?
a. Net estate: $1M probate assets + $1M testamentary substitute (the gift
causa mortis) = $2M
b. Spousal Right of Election: Of $2M sum, she is entitled to 1/3
($666,666.67) reduced by what she got under the will ($1), for an elective
share of $666,665.67.
ii. Donor gave gift above $14,000 from a gift within 1 Year of Death: Any property the
decedent gave away within the last year of his life for inadequate consideration, but
not including the $14,000 annual tax exempt gifts (b/c those were given out for estate
planning purposes)
a. Outright transfers/gifts (not gifts causa mortis) made more than a year before
the decedent's death are NOT part of his estate for election purposes
b. Calculated by the amount of the gift less the annual gift tax exclusion ($14,000)
= testamentary substitute
a. EXCLUDING: education or medical expenses paid directly to the
provider
c. E.g., H, who died this morning, made a valid will leaving his wife $1 and giving
the residuary estate to Habitat for Humanity. On New Year’s Day he made an
absolute gift to his son S of $1M. He died owning $200,000. What, if any,
right does W have to elect against the will?
i. Net Estate: $200,000 probate estate + gift w/in a year of death ($1M -
$14,000 (for gift tax))) = $1,186,000
a. Deduct $14,000, and add the difference to net estate
ii. Spousal Right of Election: the result divided by 3
d. Advancements made within 1 year of decedent’s death are counted as
testamentary substitutes.
a. If more than 1 year  advancement is considered an outright cash gift
(every year can give 50,000 free of tax)  not a testamentary substitute
b. Hypo: Assume that in January 2015, Harry also made an advancement
of $30,000 to Sam. Note he also bought a house as TBE w/ wife for

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 $300,000. (By that I mean that the net estate remained $300,000 at his
death)
i. Advancement = TS (testamentary sub) b/c made in last year of
life
ii. Calculate by Amount of Gift minus Gift Tax Exclusion =
$30,000-$14,000 = $16,000
iii. $16,000 = TS
iv. Full calculation: $300,000 net estate + $16,000 + $150,000 =
$466,000 x .3333 = $155,317
v. She received $150k through the joint property, so she gets $5k
more ratably from the other beneficiaries.
vi. 5k is Paid by other beneficiary ratably.
iii. The entire Totten Trust Accounts and their stocks/bonds equivalents: money deposited
plus interest, in a Totten Trust savings account, remaining on deposit at the date of
decedent’s death. Added to new estate to calculate elective share. Like bank account
but trustee has total control
 Revocable
 Doesn’t matter when it is set
 a form of trust in which one party (the settlor or “grantor” of the trust)
places money in a bank account or security with instructions that upon the
settlor’s death, whatever is in that account will pass to a named beneficiary.
 Totten trust is absolute gift  thus needs to be deducted when calculating
elective share. (next stage when calculate)
iv. Joint bank accounts: These are included as testamentary substitutes if was created after
the marriage, however, only to the extent that the decedent made contributions
towards the account. The burden of proof to show the amount of the consideration
furnished or the deposits made by the decedent is on the surviving spouse.
a. Half of the value if it is held with the spouse. (b)(2) covers (D) and (E)
b. Whatever the decedent contributed if it is held with anyone else.
-E.g., H created a joint bank account in 2004 with his friend F ($450,000)
and a joint bank account in 2005 with his wife W ($150,000). He died with a
net probate estate of $900,000.

-Probate: 900,000
-JBA (F) 450,000
-JBA (W) 75,000
-Total: $1,425,000

c. Also look to (b)(3), which says that the property in (E) shall include United
States savings bonds and other United States obligations.
- (b)(7) says that federal preemption rules and the individual (one who was able
to receive property) takes portion and then must pay surviving spouse.
v. Jointly Owned Property payable on death; gets whole house but for purposes of
elective share, only ½ of testamentary substitute if other joint owner is spouse
a. Considered a testamentary substitute if established after the marriage, to the
extent of the decedent’s contribution
b. Covers 2 situations:
a. Property held by decedent and another as joint tenants with right of
survivorship, or as tenants by the entirety, OR
b. Property held by decedent and payable on his or her death to someone
other than the decedent or decedent’s estate
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 c. RULE: house owned by the entirety – surviving spouse receive ½ absolutely
a. If a married couple owns a house that is worth $300k – then husband
dies  the wife owns the whole thing
b. BUT for right of election purposes – include only ½ of the house’s value
i. 150k = testamentary substitute
ii. Thus, 150k is offset
vi. The entire trust or property is counted if the decedent: Lifetime Transfers with
Retained Powers – i.e., Revocable Trusts – If the decedent made a lifetime transfer in
which he retained the 1) power to revoke trust or the 2) income interest, or 3) invade
the principal, the transfer is a testamentary substitute!
1) Retains an income interest for life for some period that in fact does not end
before her life, OR
2) Retained on the day she died:
a. A power to revoke disposition, or
b. A power to invade the principal, or
c. A power to consume (use for himself)
3) Life insurance is NOT a TS
4) Annuity is not insurance but a TS.
vii. Half of ERISA plan
a. The federal statute says that half of the benefits from the plan passes to the spouse
absolutely. i.e. half of ERISA plan.
viii. Pension Plans: any money/property payable under a benefit/retirement plan, unless the
designee was nominated before 1992 and never changes.
ix. Power of Appointment: power to dispose of property that originally belong to someone
else but only applies to presently exercisable general powers of appointment
1) The entire amount of the appointive property from presently exercisable
powers of appointment or ones exercised within 12 months. (H).
2) The value of the right is the value of the gift, if he could appoint himself.
x. Transfer of Security to Beneficiary
1) Such as TOD account
3) Third, Calculate Elective Share  Surviving spouse can elect to get the greater of:
a. $50,000 OR
i. If the whole estate less then $50,000 = whole estate
b. 1/3 of the net estate
 E.g., What is W’s elective share if H disinherited her and died owning $150,000?
$900,000? $25,000?
o $150,000: $50,000 (1/3 = $50K)  (a)(2)
o $900,000: $300,000 (1/3 greater then $50K)  (a)(2)
o $25,000: $25,000  entitled to take entire estate
4) Fourth, Calculate Elective Share  calculate elective share by testamentary substitutes + 1/3 (or
50K) and then deduct any setoffs (i.e., share reduced by value of any interest that she already got
under the will) that pass absolutely, to determine the elective share.
a. Absolute Interest: if anything passes to wife 100% under the Will/testamentary substitute,
subtract that from the net estate because the spouse’s elective share is reduced. Net Elective
= Spouse’s Elective Share – (a) capital value of any interest that passes absolutely (by
intestacy, testamentary substitute, will) OR (b) is renounced
1) Interest that does NOT Pass Absolutely [subject to conditions]: interest that so passing
from decedent to spouse consists of
i. Less than decedent’s entire interest in property OR any interest in trust/trust
equivalent created by decedent

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 ii. Unless otherwise provided, election shall have same effect with rest to any interest
which passes or would’ve passes to spouse, other than absolutely, as though spouse
predeceased decedent [It will accelerate remainder interest  Spouse forfeits her
non-absolute interest when she chooses to elect against will]
iii. EXAMPLES OF NON-ABSOLUTE INTERESTS (Why categorize them?
Because an electing spouse has to give up all non-absolute interests when she
elects)
a. I give my wife my house but if she remarries, it goes to my children. If she
elects against the estate. Then the value of the non-absolute interest is
added to the elective share. She will then get 1/3 of the elective share and
has to forefiet her non-absolute interest (i.e., life estate, income stream,
etc...)
b. I give my wife a life estate in my house, and when she dies it goes to my
children.
c. I give my wife an income interest in trust for life, remainder to my children.
(this interest would not have to be off-set by her elective share. Should
would have to give it up to elect
1) Is it a testamentary substitute?
 If it is, bring it back in for right of election purposes - added to the estate
 If not – it’s irrelevant for calculating elective share
 For trusts, ask: (1) is it revocable? (2) retained right to invade principal? (3) retained a
possessory life estate or income interest?  if yes to any 3, then TS, then added to the
estate
o We only care about revocability in this context
2) Does the spouse get anything absolutely?
o If so, then we subtract that from what the spouse has received from the 1/3rd that we
just calculated (off set!)
3) Does the spouse get anything non-absolutely?
o If it does confer non-absolute interests upon the wife, and she elects against the will
- she forfeits such non-absolute interests and the effect is to accelerate the remainder
(she is treated as though she predeceased the transfer)
o The things forfeited are only the things that were included in the 1/3rd to start
w/
o Note: if testamentary trust said “income to wife remainder to kids” then (1) not a TS;
(2) not receiving anything absolutely; (3) receiving income non-absolutely & she
elected against it = must forfeit
Hypo: Hypo: Harry died yesterday with a net estate of $1,800,000. In 2006, he transferred $450,000 into a
revocable lifetime trust to pay income to Wilma for life, remainder to their children in equal shares. He
specifically disinherited Wilma in his will. Does she have a right to elect against his will?
(1). Is it a testamentary substitute?
Yes, as a trust it is revocable, so
$450,000 LTT = TS, so add that to $1,800,000 = $2,250,000
elective share is $750,0000
(2). Does the testamentary substitute confer any non-absolute interests on the wife?
Yes b/c it is consists of any interest in a trust-absolute interest given to wife
So, if she elects for the $750,000 under the will, then she forfeits the $450,000 in the trust & she is
treated as having predeceased the testator so it accelerates it to the children.
The elective share is paid out of the $450,000 Trust & whoever gets the $1,800,000 ratably
Hypo 2: That is Harry died yesterday with a net estate of $1,800,000. In 2006, he transferred $450,000
into a irrevocable lifetime trust to pay income to Wilma for life, remainder to their children in equal

83
 shares. He specifically disinherited Wilma in his will. Does she have a right to elect against his will?
Assume no power to invade principal.
(1). Is it a testamentary substitute? No b/c it is an irrevocable trust
Answer: the wife can elect against the $1,800,000 in the will & continue to get income from the Trust

C. Determining who pays the spouse her elective share and how much:
1. The elective share is paid out ratably from the beneficiaries (under the will, through intestacy, and
through testamentary substitutes) other than the surviving spouse, with cash or the property
received. (c)(2).
a. E.g., Trust to wife for life; children & HUD get the rest…children & residuary beneficiary
have to pay ratably…what is ratable share? It's a 1/3  children get 2.2M (3.3M less 1.1),
HUD gets 4.5M (6.7 less 2.2)
b. Let's assume that this lacked a residuary clause…in a reg question, it goes to intestacy…in a
right of election scenario, she is getting more intestacy than right of election, so that is
deducted from his election, and if it is reduced below 0, she doesn't have a right of election
2. Any testamentary substitute is valid as to the residue after the wife takes her elective share. (c)(1)
D. General Provisions re Right of Election
a. Residue still gets its share but after W’s right of election
b. Beneficiaries get things through non-probate/probate assets; make ratable contribution to
surviving spouse. Spouse comes first if she elects against the will and everyone who receives gifts
by will/intestacy or testamentary substitutes will have to decide who has to pay up the surviving
spouse’s elective share [unless will directs who has to pay elective share]
c. Right of Election by someone other than the spouse can elect when court authorizes (guardian,
incompetent spouse)
d. Court determines any questions arising as to right of election
e. Spouse can rescind right of election
f. Right of election NOT available to spouse of non-NY decedent UNLESS decedent put property in
NY and elected for NY law to govern
g. Life insurance is not a testamentary substitute. Thus, even if the decedent named his spouse as
beneficiary of a 500K life insurance policy, the 500K received by the spouse does NOT affect either
her entitlement to or the amount of her elective share.
E. Procedure for Exercising the Right
a. Election must be made w/in 6 months from date of issuance letters but no later than 2 years after
decedent’s death and need personal rep.’s written notice
b. Time can be extended for reasonable cause but 2 years is SOL
c. Who Can Elect - ONLY the surviving spouse can elect (e.g., so if the suriving spouse dies before
having elected, it's too bad- tough luck on the surviving spouse's kids), EXCEPT for the following
circumstances:
 If the spouse is under 17, the guardian can elect for them.
 Committee & Conservator – superseded by Article 81 guardian.
 Guardian Ad Litem – guardian that is appointed to represent surviving spouse’s interest in a
proceeding.
 If the spouse is mentally incapacitated, the guardian can also elect for them.
F. Waiver/Release
a. Spouse may waive right of election in writing, subscribed & acknowledged or proved in a manner
required by property laws during decedent’s lifetime (i.e. pre-nup agreement)
b. Waiver can be before or after marriage, unilateral or bilateral, executed without consideration or
absolute or conditional
c. Requirement for waiver: in writing + signed + acknowledge like a real estate deed
G. Disqualification as a Surviving Spouse 5-1.2
a. Spouse cannot elect against the estate if there is:
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  Final decree of divorce/annulment that’s valid in NY
 Bigamous/incestuous marriage
 Spouse claiming benefit got a final decree of divorce/annulment from another state
 Final decree of separation for fault against surviving spouse (obtained by decedent)
 Surviving spouse abandoned deceased spouse (unjustified departutre without the consent of
the other spouse)
 Surviving spouse failed/refused to support or provide for other spouse unless such marital
duty was resume
H. Revocatory Effect of Divorce/Annulment 5-1.4
a. Disqualifies spouse form will, non-probate assets
b. Effect of divorce/annulment  revokes any gifts to surviving spouse, POA or naming surviving
spouse as executor BU
c. Will can expressly provide otherwise OR can make a will after divorce to give property to ex-wife
d. Remarriage if only reason that provisions of will that provide for gifts to spouse were revoked
because of divorce, then remarriage will revive old will
e. Surviving spouse’s marital status is determined at the time of decedent’s death
i. If one party dies during the pendency of a divorce proceeding: the action abates, leaving the
other as surviving spouse.
v. Spouse needs to get to bank ASAP and let them know there is a right of election
vi. Q-Tip Trust [Qualifying Terminable Interest Property]: Allows spouse to create a marital deductible trust
in which surviving spouse receives lifetime interest in property=> Ex. If a decedent spouse puts property
in a trust and directs that all income to spouse for life w/ no restriction=> when he dies, his executor can
opt to take the marital deduction for the full amount of money that was put into the trust=> when the W
dies the property will be treated as if it is part of her estate (tax will be calculated on W’s estate not on
H’s=> get to use unified credit for both)
I. Examples
i. Example 3: T’s will gave $500,000 to his trustee to pay all the income to W for life, remainder to
their children in equal shares. H died in 1998 with a probate estate of $1,500,000. What, if any, right
does W have to elect against the will?
-Answer: She is entitled to $500,000 and she loses all her interest in the trust. The
children’s interest is accelerated and they get $500,000 when W elects against the will.
This is b/c of 5-1.1-A.a.4.A- she loses her interest in the non-absolute interest b/c it says
that the spouse is considered to be dead immediately before the T. Thus, the kids get
their interest accelerated from the trust.
ii. Example: H died yesterday with a net estate of $300,000. He specifically disinherited his wife W in
his 2000 will and left $60,000 to his son S, the residue to his daughter D. In 2005, he bought a house
outright (no mortgage) worth $300,000 (doesn’t change) and put it in his name and W’s as tenants by
the entirety. Does W have a right to elect against the will?
a.The house held by the entirety is a testamentary substitute. Authority? ½ of the value
b. How much is included? Half (150k)
c.Add his net estate ($300,000) plus the testamentary substitute ($150,000). She gets one-third of
that sum, or $150,000
d. Offset the amount she gets via the entirety property
e.She has received enough to satisfy her right of election. She gets no more
iii. Example: In January 2007, H made an advancement (you remember!) of $30,000 to S. (Assume the
net estate remains at $300k.)
a.Advancements are not testamentary substitutes unless they fit within EPTL 5-1.1-A(b)
b. Does this advancement fit into subparagraph (b)?  No, because it was not within a year of
death.
iv. Example: T dies in late 2005 In January 2005, H made an advancement of $60,000 to D.  The
advancement is a testamentary substitute bc it is a gift made within one year!
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 v. Example 5: H disinherited his wife. Before going into the hospital for an operation, he had
transferred $200,000 to X, stipulating that he wanted it back if he survived the operation, which he
did not. He owned $100,000 at his death. What, if any, right does W have to elect against the will?
- Answer: His wife gets $100,000. His estate for right-of-election purposes is the sum of
the $100,000 probate assets plus the $200,000 testamentary substitute (the gift causa
mortis).
Q. Who has to pay the $100,000 elective share?
A. See subparagraph (c)(2), which requires ratable contributions by X and the will
beneficiaries.
vi. Example: H died yesterday with a net estate of $300,000. He specifically disinherited his wife W in
his will. In 2005, he purchased a life insurance policy with a face value of $100,000, payable to W.
Does she have a right to elect against the will?
a.Yes. She gets $100,000 (plus the 1/3).
b. Life insurance is not TS. Thus is not added to net estate
vii. Example: H died yesterday with a net estate of $1,800,000. In 2006, he transferred $450,000 into a
revocable lifetime trust to pay income to W for life, remainder to their children in equal shares. He
specifically disinherited W in his will. Does she have a right to elect against his will?
a.The $450,000 lifetime trust is a testamentary substitute.  The estate is therefore $2.25m and
her elective share is $750k.
b. Any offset?  No, under (a)(4) you need to offset only “absolute” dispositions. So if she
elects, She will be treated as having predeceased the testator for purposes of the trust
 What’s the effect of that?  To accelerate the remainder. The children get it.
 Who pays the elective share?  They’re split ratably between the will beneficiaries
(supposed to get $1.8m) and the children ($450k). The will beneficiaries pay one-fifth
($150k) and the children four-fifths ($600k). (reverse it!!!)
viii. Example 6: H disinherited his wife. He had transferred $212,000 to his daughter within the last year
of his life. He died owning $100,000. What, if any, right does W have to elect against the will?
-Answer: W is entitled to $100,000 (one-third of the sum of the probate property of
$100,000 plus $200,000 of the gift within one year of death).
Q. Who has to pay the $100k elective share?
A. The daughter has to pay 2/3, and the persons who get the probate estate of $100,000
(the will beneficiaries) have to pay 1/3.
- Note the 12k is the tax free gift & no requirement to report a check.
ix. Example 7:H created a $100,000 Totten Trust for W during his lifetime. His will gave $100,000 to
her and the residue to Z. He died with a net probate estate of $800,000. What, if any, right does W
have to elect against the will?
a. Answer: See subparagraph (a)(4), which says that you compute her elective share
first and then subtract the value of things that pass absolutely from the decedent to
such spouse, or which would have passed absolutely from the decedent to such
spouse but was renounced by the spouse, by (i) intestacy, (ii) by testamentary
substitute as described in (b)(1), or (iii) y disposition under the decedent's last will.
b. Totten trust is a testamentary substitute under §5-1.1-A.b.1.C & it is still a TS
even though the wife is benefiting from it b/c of §5-1.1-A.b.1, which says, "Whether
benefiting the surviving spouse or any other person, shall be treated as a TS"
c. Therefore the elective share is 1/3 of $900,000, or $300,000. She has received
$100,000 under the will and $100,000 from the Totten trust. She therefore gets
an additional $100,000 from Z b/c §5-1.1-A.c.2- requires ratable contribution to the
suriving spouse from distributees, other than the suriving spouse. Thus, Z is the
only one left to pay the 100k. Note: Z can choose the method of paying Z.

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 x. Example 10: During his lifetime H made a $300,000 revocable trust to pay income to W for life,
remainder to their children in equal shares. He died with a probate estate of $300,000. What, if any,
right does W have to elect against his will, which completely disinherits her?
a. Answer: The revocable trust is part of the estate for purposes of the elective share under §5-
1.1-A.b.F. So it’s added in, making the estate $600,000. She has a right to $200,000.
What happens:
b. Under (a)(4)(A), she is considered to have died immediately before the decedent for any
assets that pass to her other than absolutely, so the children’s remainder is accelerated. She
gets $100,000 from the children (from the accelerated trust) and $100,000 from the will
beneficiaries (from 300k from the residuary).

1.H died yesterday with a net estate of $450,000

If he disinherited his wife W, what is her elective share?  150,000
Assume, in the alternative, that his net estate was $120,000  greater of 50,000 and 40,000  elect to get 50,000
Assume, in the alternative, that his net estate was $18,000 greater of 50,000 and 6,000 get 18,000 (b/c too
small amount in total.
2. H died yesterday with a net estate of $210,000. His will he made a preresiduary gift of $50,000 to his wife W
and gave the residue to X. Can W elect against the will? With what effect?
Yes, because she’s entitled to at least one-third, or $70,000, and she got only $50,000;
Her elective share is $70,000, offset by the $50,000 she gets under the will, so she’s entitled to an additional
$20,000 which will be paid by the other beneficiaries ratably.
So her $20,000 is taken from X’s share. That is, W gets $70,000 and X gets $140,000
3. H died yesterday with a net estate of $300,000. His will created a $100,000 trust to pay the income to his wife
W for life, remainder to their daughter D. The will gave the residuary estate to X. Can W elect against the will?
With what effect?
She is entitled to a pecuniary amount equal to one-third, that is $100,000 outright if she elects
Did any property pass to her absolutely? No.
Did any property pass to her other than absolutely? Yes the trust interest
She’s deemed to have predeceased him by a second. It accelerate the remainder to D. D now gets the $100,000
W’s 100,000 is paid by D and X ratably. D:X=1:2$33,333 from D, $66,667 from X
4. H died yesterday with a net estate of $300,000. His will created a $100,000 trust to pay the income to his wife
W for life, remainder to their daughter D. The will gave $50,000 to X and the residuary estate to Y. Can W elect
against the will? With what effect?
Yes: get outright $100,000. Accelerate D’s interest. D gets 100,000. W’s 100,000 is paid ratably by D, X, and
Y according to 100,000:50,000,15,000 = 2:1:3.
5. H died yesterday with a net estate of $300,000. His will disinherited his wife W. In 2005, he bought a
$100,000 life insurance policy, payable on his death to W. Can she elect against the will? With what effect?
Life insurance is not TS.
So she gets $100,000 through the right of election, plus the insurance
6. H died yesterday with a net estate of $300,000. His 2014 will disinherited his wife W and left $60,000 to his
son S, the residue to his daughter D. In 2017, he bought a house outright (no mortgage) worth $300,000 and put it
in his name and W’s as tenants by the entirety. Can W elect against the will? With what effect?
Net estate + half of the house = 450,000. If wife choose to elect  wife get 150,000
She receive 150,000 half value of house absolutely (Tenants by the entirely) substracting 150,000  no more
The next few sub-questions are cumulative. Add them to question 6 and see whether they affect W’s right of
election
a) In January 2015, H made an advancement of $30,000 to Son. (beyond 1 year, not
included)not TS
b) In January 2018, H made an advancement of $60,000 to D.  That’s outside 12 months, so
it’s not part of this calculation

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 c) In January 2018, H made a cash gift of $30,000 to the Nature Conservancy. That’s outside 12
months, so it’s not part of this calculation
d) In 2016, H deposited $120,000 in a bank account in trust for W (colloquially a “Totten
Trust”).  included as TS and then substract because received absolutely
e) In 2016, H deposited $120,000 in a joint bank account with his friend F.
f)In 2016, H created a stock account ($1.2 million) in his name to be transferred on death (or
“TOD”) to his cousin C  all included
300,000 + 150,000(half of house) +120,000(totten)+120,000(joint account)+ 1,200,000=630,000
Subtracting values that received absolutely  150,000 + 120,000 =270,000  360,000 paid by ratably
S: D:F: C=30,000 (30,000 has been made in advance): 270,000:120,000:1,200,000
Why $30,000? The will gives him $60,000 and he got a $30,000 advancement
7. In 2016, H transferred $45,000 into a revocable lifetime trust to pay income to W for life, remainder to their
children in equal shares. His 2017 will disinherited W. H died yesterday with a net estate of $180,000. Can W
elect against his will? With what effect?
180,000+ 45,000=225,000
1/3=750,000
No absolute transfer  renounce the income and accelerate remainderman’s interest. Children get all
$450,000.
Wife’s 750,000 is paid by children and the beneficiaries that got 180,000.
8. In 2016, H transferred $45,000 into an irrevocable lifetime trust to pay income to W for life, remainder to their
children in equal shares. The trust had no other terms. His 2017 will disinherited W. H died yesterday with a net
estate of $180,000. Can W elect against his will? With what effect?
If she elect against the will. she can get 1/3*180,000= 60,000 and still entitle to the income
Not receive something absolutely and irrevocable lifetime trust is not TS.

Question left: one year gift  the amount exceed 14,000 or 15,000?
As to the trust, only revocable lifetime trust is the TS. As to the testamentary trust it is already included in
net estate. As to the lifetime irrevocable trust, it is not Ts.
But testamentary trust in which the spouse is entitled to income is not absolute transfer thus will not be
subtracting from the result of the first stage.

EXEMPT PROPERTY

A. Rule: If a person dies leaving a surviving spouse OR children under the 21 years (without surviving
spouse), the following items are safe from creditors, but CAN be used to pay funeral expenses (unless
DISQUALIFIED under 5-1.2):
1. None of this is counted in elective share (spouse gets this off top & elective share) Items:
1) All housekeeping items, not exceeding in aggregate value $20,000.
2) The family bible, family pictures, tapes, discs, and software used by such family, and books,
not exceeding in value $2,500.
3) Domestic animals with their necessary food for sixty days, farm machinery and tractors not
exceeding in aggregate value $20,000.
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 4) One motor vehicle not exceeding in value $25,000.
a. (i) If the decedent owned more than one car, even if one is more than 25k, the spouse
can pick any one he wants but must repay the estate the difference.
b. (ii) Spouse can elect to receive the value of the car, not exceeding 25k, instead of the
car.
c. (iii) If any motor vehicle was a specific disposition in decedent’s will, the payment to
the estate of the amount by which the value of the motor vehicle exceeds $25,000 shall
vest in the specific beneficiary.
5) Money or other personal property not exceeding in value $15,000, except that where assets
are insufficient to pay the reasonable funeral expenses, the personal rep must apply such
money/property to defray any deficiency.
3. No allowance shall be made in money or other property if the items of property described above are
not in existence when the decedent dies.
4. As used in this section, the term “value” shall refer to the fair market value of each item, reduced by
all outstanding security interest or other encumbrances.
5. Where an asset described above doesn’t exist when D dies, don’t get to keep the equivalent in money
value or other property.
6. This statute trumps even contrary provisions and dispositions in the will.
7. Exception: Must pay funeral expenses first, this has priority to the exempt items
8. If such items don’t exist when decedent dies, then spouse/children get nothing
9. Items of property shall be deemed reasonably required to support surviving spouse/children under 21
years of decedent during estate settlement

AFTERBORN CHILDREN

A. Purpose: Seeks to prevent accidental disinheritance of children born after a will. § 5-3.2.
B. Triggers
i. A child is born after the testator writes her last will AND
a. An “afterborn” child includes children born or in gestation during the testator’s
lifetime. § 5-3.2(b).
b. Non-marital children count pursuant to § 4-1.2.
c. Not included the genetic children
ii. The child is not provided for or mentioned in the will (e.g., even by class gift) AND the
testator dies without settling for the child in any way.
a. It is a question of fact whether a gift to an after-born child will be considered to be a
settlement de-triggering this statute.
b. This determination is made in light of the goal to prevent accidental disinheritance (i.e.,
did the testator remember the child?).
C. Purpose: prevent the unintentional disinheritance of afterborn children
a. Be caution: A parent in NY doe NOT have to leave any part of her estate to his or her
children.
b. If you use children or issue  class gift, this statute wont be used.
c. This section applies only to testamentary assets
D. Impact
i. Step one: after born child will not be enetitled to take under decedent’s will if
a. Such children was provided for or mentioned in the will in any way or,
b. Such child was provided for in a settlement (life insurance, Totten trust, luxurious car)
c. If not provided for above mentioned things go to ii – whether testator has children when
he executs the will.
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 ii. If the testator has children other than the afterborn:
a. Rule I: If decedent left nothing to her existing children in her will, the after-born also
gets nothing.
b. Rule II: If the testator has at least 1 kid at the time of executing the will:
1. If the parent gave the same amount to each childThe afterborn child gets the
average of what the children who were provided for received (i.e., the total
amount that children received divided by the number of children including the
afterborn child – 200K to 1, 2, 3. 4 later. Each gets 600/4 = 150K).
2. Kids who are disinherited are NOT included in this calculation
 E.g., At the time she signed her will in 2003, D had six children. She
expressly disinherited five of her them and bequeathed her entire estate
to the sixth child. A seventh child was born in 2006. Child 6 & 7 split
the estate; children 1-5 are left out.
 The total given to all of the children MINUS what is given to the
afterborn child is distributed to the other children ratably.
 E.g., When D signed her will in 2003, she had children 1, 2, and 3. In
the will she gave Child 1 $100,000, Child 2 $200,000 and Child 3
nothing. Child 4 was born in 2004. Child 4 is entitled to 1/3 of what 1
& 2 got, taken ratably from their bequests: 1/3 x $300,000 = $100,000
→ $66,667 from 1 & $33,333 from 2
3. If it appears testator’s intention was to make a limited provision which
specifically applied only to child born before execution of will, after-born gets
the share is his intestate share [applies where there’s a stated reason for
disinheritance]
 E.g., At the time she signed her will in 2003, D had six children. She
expressly disinherited five of her them and bequeathed her entire estate
to the sixth child. A seventh child was born in 2006. Child 6 & 7 split
the estate; children 1-5 are left out.
4. After-born’s interest shall be of the same character as interest of other children
(other children ratably contribute to after-born child)
iii. Rule III: if testator had no children when he executed his will  after-born child takes his/her
share as though testator died intestate (could be reversed by will
a. After-Born Child = child born during testator’s lifetime OR in gestation at time of T’s
death.
b. Non-marital child, born after execution of will, shall be considered ‘after-born child’
of his father where paternity is established
c. REMEMBER: Afterborn children’s intestate (issue) share trumps residuary
beneficiary that isn’t a spouse! (aka a charity, etc)
 E.g., At the time she signed her will in 2003, D had no children. She
bequeathed her entire estate to her husband. She provided that if her
husband predeceased her, her executor should pay her entire estate to
Habitat for Humanity. Her husband predeceased D, but triplets 1, 2, and
3, born in 2006, survived her. Child 1,2,3 are entitled to the whole
thing, by representation. Habitat gets nothing.
d. REMEMBER: To account for living spouse’s intestate share first!!! (50K plus 1/2 )
iv. Rule IV: Only children already in utero at the decedent’s death can be counted as an after-born
child  Genetic children cannot take under this statute (but will take under class gift if testator
used “issue”.
a. However, if the will doesn’t specify the children in the will, and just says “to my issues”
then it would fit under this statute!
v. Limited Provision--- I give my daughter only $10 because she disappointed me
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 a. If u can show that the existing child received a limited provision only applying to her, then
the after born child still gets to share
a. M's will stated, "I leave nothing to my daughter because she dropped out of
school." T later had another daughter. Does the after-born daughter have any
rights?
 Since the existing child received a limited provision that specifically
applied only to her, the after-born gets her intestate share.
b. If your will is silent, but everyone knows you didn’t mention your daughter because she
dropped out of high-school, the after born gets nothing (treated as if u had kids, but did not
leave anything for them-after born also gets nothing)  therefore, must stated
E. Examples
a. Example 1: T has children A and B at the time of the will execution. In the will she gives
them each $15,000. Child C is born later. What are C's rights?
 Answer: The “pot” allocated to children is $30,000, and C gets to share
in it. C gets one-third ($10,000). A and B get $10,000 each. Why?
Subparagraph (b) says the other children contribute ratably.
b. Example 2: T in #1 gives A $20,000 and B $10,000 in will. What are C's rights
 Answer: As in #1, C gets one-third ($10,000). The other $20,000 goes
to A and B ratably (that is, in a 2:1 ratio, or $13,333 to A and $6,667 to
B).
c. Example 3: T has children A, B, and C at the time of the will execution. In the will she
gives A $10,000, B $50,000 and C nothing. Child D is born later. What are D's rights?
 Answer: The “pot” is now $60,000. Three children share (the after-born
plus those named in the will). Therefore D gets $20,000. A and B share
the remaining $40,000 in a 1:5 ratio. That is, A gets $6,667 and B gets
$33,333.
d. Example 4: Same as #3, except D and E are both born after the will.
 Answer: The “pot” is still $60,000. Four children have to share it. D
and E each get $15,000. A and B share the remaining $30,000 in a 1:5
ratio ($5,000 to A and $25,000 to B)
e. Example 5: T disinherits five of her children and leaves her entire estate to one child. A
seventh child is born after the will. What are his rights?
 Answer: After-born gets 1/2 of the estate.
f. Example 6: T had no children when she left her entire estate to her husband. She later had
children A and B. What are their rights?
 Answer: After-born child gets his intestate share pursuant to §5-3.2.a.2.
That is, one-half after $50,000 has been taken off the top)
g. Example 7: T has no children when she writes a will leaving her entire estate to H, or if he
predeceases, to friend F. H predeceases. T is survived by after-born children A, B and C, and
by F. Who gets the estate?
 Answer: A, B and C share the estate equally. F gets nothing. Pursuant to
§5-3.2.a.2, which says the after-born kids get the intestate share. Then
you look at §4-1.1.a.3 b/c there is no spouse and only issue, so the kids
get the entire intestate share.
h. EXAMPLE 9- Old Exam Question!!!: T wrote a will in 1980 leaving his entire estate to his
friend X. In 1985 he married W, but never wrote a new will. In 1986 he bought a life
insurance policy with a face value of $1,000,000, designating W as beneficiary and noting in
the application form that he wanted her to get these proceeds because his whole probate
estate was going to X. In 1987, his daughter D was born. For her first birthday he bought
her a $1,000 savings bond. He died in 1995 with a net probate estate $1,000,000 and the

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 insurance company paid $1,000,000 to W. What are the rights of W, X and D in T's estate?
Answer:
 W's Right of Election. The net estate is $1,000,000.
 Note: The life insurance is not a testamentary substitute, nor is the
lifetime transfer of the U.S. Treasury bond, because it’s not jointly
owned by decedent and his daughter, but by her alone. Even if he
transferred it in the last year of his life, it’s under $12,000 so it doesn’t
count as a testamentary substitute.
 Thus, W therefore has a right to get one-third of the $1,000,000 and she
doesn’t have to offset anything against it (that is, she gets the $1,000,000
life insurance too). She is entitled to $333,333 as her right of election,
and the $1,000,000 life insurance proceeds.
 D, daughter' Interest: D is an after-born child under §5-3.2 & §5-
3.2.a.2 applies b/c no children were alive at the time of the will, so she
gets her intestate share.
 X would argue: that: a “settlement” for her, albeit small, and that would
preclude her from taking a share under the statute.
 If that argument prevails, the wife would get $333,333 and X would get
$666,667.
 D would counter argue: In the alternative, if the gift was not a
“settlement” for after-born-child purposes, because it was small, and a
birthday gift …
 If it isn't a settlement  [if not a “settlement”] the daughter is entitled
to her intestate share ($475,000). (b/c §4-1.1.a.1 applies b/c both spouse
and issue are alive. Thus, 1,000,000 less 50k to spouse equals 950,000
divided by 2, equals $475k.
 If not a settlement  W gets $333,333, and the daughter and X have to
make up her right of election in a $475,000:525,000 ratio ($158,300
and $174,700). Daughter ends up with $316,667 and X with $350,333.
i. Example 10 (a): T's will states: "I leave $10 to my daughter because she dropped out of
school." T later has another daughter. Does the after-born have any rights?
 Answer: Subparagraph (a)(1)(B)(iii): Since the existing child received a limited
provision that specifically applied only to her, the after-born can take her intestate
share.
j. Example 10 (b): T's will states, "I leave nothing to my daughter because she dropped out of
school." T later has another daughter. Does she have any rights
 Answer: It seems the answer should be the same but it’s less clear whether the statute
covers it. Is “nothing” a limited provision?
k. M died yesterday. In 2000, when she executed her will, she had children 1, 2, and 3, and she
bequeathed them each $300,000. Child 4 was born in 2006, and Child 5 earlier this year. Do
Children 4 and 5 have any rights in M’s estate?
 Yes they do! 300,000 x’s 3= 900K. So you must divide this equally so they will all
get 180K.
l. M died yesterday. In 2000, when she executed her will, she had five children, and she
disinherited four of them and bequeathed her entire estate to one child. A sixth child is born
after the will. What are his rights?
 Yes, he gets ½ (bc you don’t include the disinherited children)
m. M had no children when she executed a will leaving her entire estate to her husband. She
later had children A and B. What are their rights?
 They get their intestate share (that is, one-half after $50,000 has been taken off the
top).
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 n. Mary had no children when she executed a will leaving her entire estate to Husband, or if he
predecease her, to friend F. H predeceased M, who was survived by after-born children A, B
and C, and by F. Who gets what?
 A, B and C share the estate equally. F gets nothing.
o. M had no children when she executed a will giving $100,000 to charity, residue to Husband.
The net estate at her death was $400,000. She had an after-born child. What are his rights
and how is his share
 He’s entitled to his intestate share He gets $175,000 (one-half of $400,000 –
50,000)
 Where does it come from? It will be prorated against the charity and H in a 1:3 ratio
i. Charity has to pay ¼ of it, or $43,750, leaving it with $56,250.
ii. H has to pay 3/4 of it, or $131,250, leaving him with $168,750.
iii. Since that exceeds one-third of the estate ($133,333), he cannot elect against
the will.

Problem After-born Children

Assume that nothing else happens and that the will has no other terms than the question says
1 D died yesterday. When he had three children, he executed a will giving them each $4,000. Later he had a
fourth child. Does the fourth child have rights in D’s estate
Yes, EPTL 5-3.2 (a)(1)(B), amount limited to the will, 3*4000/4=3000 (limited the portion that was disposed to
children; EPTL 5-3.2(c)(requiring ratable contribution from the other children)  so the three children
each give 1,000 to the afterborn
2 D died yesterday. When he had three children, he executed a will giving them each $5,000. Later he had a
fourth and fifth children. Does they have rights in D’s estate
Yes, 5000*3/5=3000, each give 1000 to the fourth and fifth respectively (5-3.2(c)).
3 D died yesterday. When he had three children, he executed a will giving them $2,500, $5,000 and $7,500
respectively. Later he had a fourth child. Does the fourth child have rights in D’s estate
Yes, EPTL 5-3.2 (a)(1)  2500 + 5000+ 7500=15000  /4= 3750; ratably from 1:2 :3 from each one child.
3750/6; 3750/3; 3750/2
4 D died yesterday. Before he had children, he executed a will giving his entire estate to his wife. Later he had a
child. Does the child have rights in D’s estate
Yes , EPTL 5-3.2(a)(2) – like in intestacy (ONE half after 50,000 has been taken)
5 D died yesterday, survived by his wife. When he had three children, he executed a will giving his entire estate to
his wife, or if she predeceased him, to his children. Later he had a fourth child. Does the child have rights in D’s
estate?
No, EPTL-5-3.2(a)(1)(A): made when one or more children living but no provision is made for any such child,
When the wife alive, wife gets everything, children gets nothing b/c will mentioned the children.
6 D died yesterday, survived by his wife. Before he had children, he executed a will giving his entire estate to his
wife, or if she predeceased him, to the Nature Conservancy. Later he had a child. Who gets what in this estate?
Children gets One half of the estate after taken 50,000 off the top. ETPL 5-3.2(a)(2), come from the wife’s share
5-3.2(c)(subparagraph)
7 D died yesterday, survived by his wife, with a net estate of $150,000. Before he had children, he executed a will
giving $75,000 to his wife and the residue to the Nature Conservancy. Later he had a child. Does the child have
rights in D’s estate

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Yes, wife must have 50k + 50k under testacy and Child gets 50k(150k-50k)*1/2 under intestate, rataly from wife
25k and NC 25k
It is sufficient for the wife even under the right to election
What if it were not sufficient to satisfy W’s right of election?
Then you’d calculate the right of election, and prorate it against the children and the Nature Conservancy.
For example, assume the will gave $50,000 to his wife and the residue to the Nature Conservancy ($100,000
residue); The after-born is entitled to $50,000, prorated in a 1:2 ratio between the wife and the Nature
Conservancy; After that calculation, the wife winds up with $33,333 [1/3 of 100,000] and the Nature Conservancy
with $66,667.
After that calculation, the wife winds up with $33,333 and the Nature Conservancy with $66,667.
The wife has a right of election. The estate is $150,000. She’s entitled to $50,000, less the $33,333 she got
absolutely
That’s an additional $16,667.
It’s prorated between the after-born and the Nature Conservancy in a 50,000:66,667 ratio.
The after-born’s share is $7,143, leaving her with $42,857
The Nature Conservancy’s share is $9,524, leaving it with $57,143
Result:
W gets $50,000
After-born gets $42,857.
Nature Conservancy gets $57,143.
8 D died yesterday, survived by his wife, with a net estate of $150,000. Before he had children, he executed a will
giving $50,000 to his wife and the residue to the Nature Conservancy. Later he had a child. He deposited $5,000
in a Totten Trust bank account for (“in trust for”) that child. Does the child have rights in D’s estate
No, she’s got 50,000 = 1/3, because it has already been settlement – EPTL 5-3.2 (a)
Like the life insurance  settlement
9 D died last year. When he had three children, he executed a will giving them each $4,000. After he died, his
wife had another child, using sperm D had deposited in a reproductive facility a year before his death. Assume
that the satisfied all the requirements of EPTL 4-1.3. Does the fourth child have rights in D’s estate
If the fourth child in gestation at the time of testor’s death in order to trigger 5-3.2 (see 5-3.2(b)  born during the
testator’s life time or in the gestation). However, it is not. Therefore, not included in the will. there is no class gift
 no right in the estate. (§4-1.4 does not excuse the 5-3.2)

If that child was in his mother’s womb when his father died, yes.
If that child was not (if he was conceived after his father died), no.
Further information is required here.
Genetic child sometime is not after born child (must be in the gestation)

II.TAX APPORTIONMENT
A. Three Sets of Taxes:
i. Estate Tax: assessed on amount of money that decedent owns & measured on DEATH, FMV of property.
Can opt to value estate property 6 months after death
a. Property Included in Gross Estate: Probate property, lifetimes gifts made within 3 years of
death, retained property interest, powers of appointment, jointly owned property, life insurance,
annuities
b. Marital Deduction: Unlimited!! [even includes Q-Tip Trusts & Life Estate/General Powers of
Appointment Trust]
ii. Gift Tax: tax assessed on amount of money that’s given to donee
iii. Generation-Skipping Tax: three triggering events: (i) taxable termination [when income beneficiary dies],
(ii) taxable distribution [when trustee has authority to distribute over other generations] & (iii) Direct
skip [gift from grandmother directly to grandson]

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B. Default Rule: This statute directs how estate taxes should be apportioned if the T has NOT provided
otherwise, among beneficiaries of an estate.
1) Taxes are apportioned ratably among those who receive according to what they received.
1. E.g., if the decedent had no non-testamentary assets, and in his will gave $100 to X, $200 to Y,
and the residue (valued at $300) to Z, X will be responsible for 1/6 of the estate taxes, Y for 1/3
and Z for 1/2. Interest on taxes are apportioned in the same way
2. Example: The will gives the DVD player to X, the ring to Y, and the residue to Z. The DVD is
worth $25,000 (very fancy), the ring $75,000, and the residue $900,000. The estate taxes total
$200,000, and the will is silent on their payment. Who is responsible for the taxes?
a. Answer: The totals received by people under the will is $1,000,000. None of the
beneficiaries is a spouse or charity. Therefore, use $1,000,000 as the denominator of the
fraction
b. X: 25,000/1,000,000 = 2½% = $5,000; Y: 75,000/1,000,000 = 7½% = $15,000; Z:
900,000/1,000,000 = 90% = $180,000
3. NOTE: Includes ALL non-probate Assets! → The beneficiaries of non-probate assets, such as
life insurance, pensions, jointly owned property and lifetime trusts, must also bear a portion of
the estate taxes, if those assets are included in gross estate. Thus, if in addition to the will
dispositions described above, the testator had also named S as beneficiary of a $100 life
insurance policy in his gross estate, X and S would each pay 1/7 of the estate taxes.
2) If the estate gets a deduction because a beneficiary is the decedent’s spouse or a charity, that
beneficiary does not have to pay a ratable share (neither including their benefits in the calculation)
3) Steps
1) Figure out Gross Estate
i. Add up all gifts EXCEPT any marital deductions/gifts to charity
2) For each person’s gift, you will divide that by the total amount of gross estate, times the taxes
A=specific gift to person X TOTAL TAXES
Total amount of Gross Estate
4) If something never comes into the hands of the fiduciary but should be taxed, the fiduciary has a right
to recover the taxes from these people. (Totten trusts, joint bank accounts, life insurance, pensions -
anything that transfers by operation of K etc.).
a. Procedure: Fiduciary can write a letter and ask for that person’s share of taxes. If they don’t
do this, there is a Surrogate Court proceeding. The Surrogate has broad discretion for getting
this back. If fiduciary has possession of the fund…will just take the taxes out before
distributing it.
b. If the person has spent all the funds…the court, in its discretion will determine who pays taxes.
5) If there is conflicting direction as to how to apportion taxes, than the later direction applies if it comes
later and specifically refers to the earlier direction. (without specifically reference, the later one is
ineffective as to change the tax burden)
a. Generally, the tax apportionment directions in a will or instrument only relate to the property
passing under it
b. A testator may put directives regarding tax apportionment in another instrument, BUT those
directives refer only to the property passing under that instrument unless the will or instrument
says otherwise
i. Good clause: “All taxes incurred by this trust should be paid by A and B. It is my desire
that my daughter C shall not be responsible for any of the estate taxes incurred by this
trust.”
i. BUT: “I direct my executor to pay out of my residuary estate any estate taxes incurred
by the inclusion of this trust in my gross estate." Trust instrument refers to more than
just trust = INVALID
6) If there are conflicting directives regarding tax apportionment in a will and a lifetime trust of the same
decedent
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 1. any direction in a will which is later in date than a prior non-testamentary and which contains a
contrary direction shall govern provided that the later will specifically refers to the direction in
such prior instrument.
2. Direction in a non-testamentary instrument which is later in date than a prior will or non-
testamentary instrument and which contains a contrary direction shall govern provided that the
later instrument specifically refers to the direction in such prior will or instrument.
3. Any such direction provided in a non-testamentary instrument only relates to the payment of
the tax from the property passing thereunder and such direction shall not serve to exonerate
such non-testamentary property from the payment of its proportionate share of the tax
even if otherwise directed in that non-testamentary instrument  but will can do this.
7) Fiduciary can deduct the taxes first AND then pay out the money. The fiduciary might sign a
“refunding promise” and will refund if there is excess.
8) The surrogate broad discretion to accomplish all the goals set forth in the EPTL and SCPA.
9) Lawyer’s FEES! If someone has a right to revoke a trust, there might be a litigation as to whether or
not it is included in the gross estate because of that power to revoke. This provision apportions
attorney’s fees for the purpose of litigating whether something is taxable.

C. EPTL 2-1.8 (same as above just stated in a dif way)

a. How to pay taxes; Default Rule  what parties have to bear burden of taxes and how much
b. People who benefit from decedent’s estate, shall pay taxes in proportion to amount of benefit
under the will (executor pays them)
c. Unless otherwise provided in the will or non-testamentary instrument:
i. Tax shall be apportioned among the persons benefited in the proportion that the value of
property received by each such person benefited bears to the total value of the property and
interest received by all person benefited…
ii. **Remember to add up the gross estate!
iii. **If beneficiary a spouse or charity → no tax!!! Also no tax on medical expenses
 I.e: . Pre-residuary gift to Wife of 3M, and entire estate is 6M. Take out 3M before
doing calculations
d. Can instruct where you want your taxes to be paid out of/trigger who to direct to pay taxes and
from where
i. If will & non-testamentary instrument contain contrary terms, later one prevails if it
makes reference to contrary direction in prior instrument
ii. Non-testamentary instrument will govern if later
iii. Only a will can shift non-testamentary taxes to residuary. Canoe exonerate trust from
tax liability & shift to residuary in non-testamentary substitute
e. Q-Tip: idea is that property should only be taxed once in two spouse’s estates. So any property
that had been Q-tipped in first estate is going to be taxed only in second estate.
i. If someone has a marital deduction by means of income to a spouse…with the
remainder payable to the children will STILL qualify for a deduction, even though it
is a terminable asset. The second spouse’s estate is NOT going to be responsible for
the taxes on this asset…it is going to take care of itself.
ii. Hypo: Husband puts the money in a trust and directs that all of the income be paid to
the spouse, unrestricted, and when spouse dies, goes to kids. When the husband dies,
he has a 100% marital deduction for the property. When the wife later dies, that trust
is added on to her gross estate.
f. Fiduciary has alterative property that fiduciary doesn’t get possession to distribute (non-
probate), can recover from that beneficiary
g. Fiduciary isn’t required to distribute until all taxes are paid
h. NOTE: LIFE INSURANCE isn't always included in gross estate -- there are three situations
where it will not be included, really four. (See p. 414)
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 i. Only way to keep insurance proceeds out of the gross estate is to
a. make a lifetime gift of the policy
b. to relinquish all rights over the policy during life, and
c. assure that the proceeds are not paid to the estate
d. available to pay creditors of the estate.
ii. NOTE: If you said "any property that's included in my gross estate should have taxes paid
from... " this would clearly include life insurance and other non-probate assets, and would
therefore deactivate EPTL § 2-1.8.
i. NOTE: Deactivation of Apportionment Clause → If you say that you direct the executor to pay
the estate taxes out as an “administration expense” – the courts have treated this as coming “out
of the residuary estate.” Then ALL taxes will be paid out of the residuary estate for BOTH
property passing under the will and property passing out of the will.
i. “I direct that any taxes that are imposed on my estate be paid out of the residuary.” →
This encompasses the non-probate stuff. If you really want ALL taxes to be paid out of
this, should be more clear…should say….”including property that passes out of the will.”
ii. “I direct that any property passing because of my death, should be paid by residuary.” →
This sounds like it exempts non-probate property
iii. “I direct that ALL taxes be paid from the residuary of the estate…so that the devisees and
bequests be free therefrom.” → The court held this to be so specific that the T meant ALL
taxes generated by ALL properties
iv. BOTTOM LINE – Should be clear when you draft as to whether you mean ALL probate
or non-probate assets
D. Examples
a. The will gives the DVD player to X, the ring to Y, and the residue to Z. The DVD is worth $25,000
(very fancy), the ring $75,000, and the residue $900,000. The estate taxes total $200,000, and the will
is silent on their payment. Who is responsible for the taxes?
i. Answer: The totals received by people under the will is $1,000,000. None of the
beneficiaries is a spouse or charity. Therefore, use $1,000,000 as the denominator of the
fraction. 2.5:7.5:90
ii. X: 25,000/1,000,000 = 2½% = $5,000; Y: 75,000/1,000,000 = 7½% = $15,000; Z:
900,000/1,000,000 = 90% = $180,000
b. In his will, T gives his artwork, valued at $100m, to A, his books, valued at $400m, to B, $100m to the
Nature Conservancy, and his residuary estate ($500m) to C. His estate taxes total $350m. How should
the executor apportion them?
100m to Conservancy is not taxable, so it is taken out. Total gross estate then 1B. 1:4:5 ratio.
T – 1/10, A – 4/10, C – 5/10.
c. In his will, T gives $100k to A, $200k to B, and residuary estate ($3m) to C. In 2004 T made a $300k
revocable lifetime trust to pay income to himself for life, remainder to D and E in equal shares. In
2005, he deposited $400k in a bank account in his name in trust for E. Both lifetime transfers are
includible in the gross estate. His estate taxes total $1m. How should the executor apportion them?
Ratio is 100:200:3000:150:550. 4m gross estate. A – 1/40, B – 2/40, C – 30/40, D – 1.5/40,
E – 5.5/40.
d. Read above as originally written, and assume that in the lifetime trust, T included an instruction that he
wanted any estate taxes incurred by the trust to be paid out of his residuary estate. Is that effective?
No, not effective. The will can apportion taxes but the trust can only apportion taxes within
the trust itself.
e. Grantor makes a lifetime trust directing that income be paid to G, remainder to X, Y, and Z in equal
shares, and specifying that “all taxes incurred by this trust should be paid by X and Y, not Z.” Who is
responsible for the estate taxes?.
i. Answer: That directive is effective. The taxes will come from X’s and Y’s shares.§2-1.8.d.3
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 ii. In the alternative, he says, “All taxes should be paid out of the residuary of the grantor's estate."
Answer: Not effective (subparagraph (d)(3)). "such direction shall not serve to exonerate
such non-testamentary property from the payment of its proportionate share of the tax, even if
otherwise directed in that non-testamentary instrument."
f. Trust in 1970, said taxes from trust to be paid from trust. Then he made another Will in 1990, that said
ALL taxes and specifically mentioned trust, should be paid from residuary.
i. ANS: Two conflicting provisions, and (d) (1) says later instrument, will, here controls.
ii. ANS: The later instrument prevails if it specifically refers to the directive in the prior
instrument. Q: Q: Does the 1990 will make such a specific reference? Not really. Crazy result.
A thinking court should give effect to the later will and direct the executor to pay the taxes from
the residuary.
g. Lifetime trust here says taxes for the trust should be "paid by X & Y, but not Z. "
i. This is perfectly fine according to (d)(3). The testator can say how taxes for the trust should be
paid.
h. D says all estate taxes ... but he doesn't specifically mention the life insurance policy
i. The will should specifically addresses property passing “under this will or otherwise..." which
would then deactivate EPTL § 2-1.8.
i. In 1980, T made a lifetime trust (corpus $1m) to pay income to himself for life, remainder to A and B,
and he directed that all estate taxes incurred by the trust be paid equally by A and B. In his 2007 will
disposing of his $3m probate estate, he directed that all estate taxes be paid out his residuary estate. Do
A and B have to bear the burden of the taxes incurred by the trust?
 Yes – its not specific enough in the later instrument.

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1.T’s will left his first-edition Shakespeare (valued at $1,000) to A, his gold watch (valued at $200) to B, and
his residuary estate (valued at $800) to C. His estate taxes totaled $800. Who’s responsible for what shares?
EPTL (c)(1)  general rule applies  A: ½400
B:1/10  80
C: 40%  320
2000 is the denominator, 1000/800 /200 are the numerator.
2.T’s will left his first-edition Shakespeare (valued at $1,000) to A, his gold watch (valued at $200) to B, $200
to C, and his residuary estate (valued at $800) to the Nature Conservancy. His estate taxes total $800. Who’s
responsible for what shares?
To NC (charity) is tax exempted (c)(2)  A: 10/14; B 2/14; C 2/14 (leave the charity out of both denominator
and numerator )10:2:2(for exam purpose  10:2:2 is fine A $572, B&C 114 each
3. T’s will left $200 to A, $400 to B, and the residuary estate ($6,000) to C. Later T properly executed a $600
revocable lifetime trust to pay income to himself for life, remainder to B and C in equal shares. Later, he
deposited $800 in a bank account in his name in trust for D (Totten Trust). The lifetime trust and Totten
Trust were both included in the gross estate for tax purposes. His estate taxes were $2,000. Who’s
responsible for what shares?
b/c all are included in the gross estate EPTL 2-1.8(b)
The beneficiaries of the lifetime trust and the Totten Trust are “persons benefited.”  2-1.8(a) “persons
interested in the gross tax estate.”
Nobody’s a spouse or charity, so add them all together for the denominator
A$200, B $400+300, C$6000+300; D: 800 total is 8000
200/8000; 700/8000;6300/8000; 800/8000  2:7:63:8 multiply 2000
4. If the lifetime trust in #3 said that it wanted any estate taxes incurred by the trust’s inclusion in his gross
estate to be paid by B, not C, does B have to pay the trust’s whole share of the taxes?
Yes, Subparagraphs (a), (d)(3)
5.If the lifetime trust in #3 said that it wanted any estate taxes incurred by the trust’s inclusion in his gross
estate to be paid out of the residuary estate, does that shift the trust’s share of the taxes to C?
No, same principal 2-1.8(d)(3) you can not exonerate such non-testmentary property
6.T’s will left $200 to A and the residuary estate ($400) to B. He directed that his estate taxes be paid out
of the residuary estate. Later he bought a $300 life insurance policy, payable to C and included in the estate
for tax purposes. The estate taxes were $300. Who’s responsible for them?
B pays all the estate taxes except those incurred because of the life insurance. C is responsible for her shere
1/3 of the taxes or $100., residuary,
EPTL 2-1.8(d)(2) – not specifically refer to the direction in such prior will. If want B to pay, then must
explicitly refer to the insurance policy.
7.T directed her executor to pay all estate taxes on property included in her gross estate, whether passing
under the will or outside the will, from the residuary estate. Twenty years later, she properly made a revocable
lifetime trust to pay income to herself for life, remainder to her niece, and directed that the niece should be
responsible for the trust’s share of the taxes. Is she?
NO !! (d)(2) applies here, first will, then the trust (instrument)
EPTL 2-1.8(d)(2) requires that the later trust contain an explicit reference to the contrary direction in
the prior will. This trust directive does not meet that requirement
Later will specifically refers to the direction in such prior instrument or later instrument specifically refers to
the direction in such prior will
Will can say tax of this will or outside instrument paid by the residuary beneficiary
But trust cannot do it.

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 TRUSTS
EXPRESS TRUSTS
A. What is a trust?
a. A trust is: (rest)
i. Fiduciary relationship
ii. With respect to property,
iii. Created Intentionally
iv. By the Creator
v. Whereby Trustee Holds Title to duties, BUT
vi. Is Under a Contractual Duty to Deal With it For the Benefit of Another, at least one of whom is
not the trustee).
b. Trustee description: inserted here Cardozo standard.
c. It is an instrument for the gratuitous transfers of wealth … a management device for holding a
portfolio assets…equities, bonds, mutual fund shares, insurance Ks, etc.
d. The trusts property’s legal title goes to the trustee and the equitable (or beneficial) title goes to the
beneficiaries, or more, is divided between income beneficiaries and beneficiaries of future interests in
corpus. (pg.466)
e. Restatement definition: A trust is “a fiduciary relationship with respect to property arising as a result of
a manifestation of an intention to create that relationship and subjecting the person who holds titles to
the property to duties to deal with it for the benefit of…one or more persons, at least one of whom is
not the sole trustee.”
a. A trust may be irrevocable or revocable
b. There must be a separation of legal and equitable ownership; and
c. There must be an enforceable duty
f. What are the Differences Between a Will and a Living Trust?
i. A living trust is a legal document that becomes valid when you execute the documents and your
property is transferred into it. You, as the grantor and trustee, manage the assets while you are
alive and then they are passed directly to a trustee of your choice upon your death without
involving probate.
a. Although you cannot name a guardian for your children in a living trust, you can choose
someone to manage assets set aside for a specific beneficiary until they are older. As
discussed below, you can execute a will in conjunction with your living trust, under
which you can name a guardian of your children.
ii. The main difference between the two documents is that a will takes effect only after your death
while a living trust becomes valid as soon as it is duly executed and assets are added—that is,
during your lifetime.
iii. Another significant difference between the two is that a living trust can make provisions for
your estate in case you are incapacitated. A will cannot do this, although a power of attorney
can. Living trusts, though, may be more specific and make managing the estate easier on the
trustee than a power of attorney.
iv. Moreover, regarding probate, a living trust can help to avoid time and costs associated with it,
particularly since with a living trust, there is no freezing of assets so long as the trust has been
funded. Another advantage to a living trust is that it remains private in many states, while a will
becomes part of the public record during the probate process.

B. Express Trusts: Relationship whereby property is held by one party (trustee) for the benefit of another
(beneficiary). Person’s assets can be saved for a later generation. It is extremely flexible/impartial for property
management, convenient way to avoid probate, taxes.

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 a. The resulting trust (pg. 476) is not a trust. But a rule in favor of the grantor who the trust fails. It
is a property interest analogous to the reversion retained by a grantor who convey one or more legal
interest in property fot life or for years without creating a remainder thereafter.

C. Usefulness of Trusts:
1) Probate Avoidance (i.e., $$ in a trust is already payable as soon as die vs. $$ in will has to be probated
by estate before it’s available.
2) Property Management (i.e. can decide who gets what when - give 1/3 to child now, and 1/3 when 35,
etc. - so they don’t squander it away). Maybe QTIP trust
3) Tax Reasons (i.e., children from a prior marriage - want the principal to go primarily to them even with
husband)
4) Control through successive generations (i.e., might want the principal to go all to grandchildren)
5) Administrative reasons (in probate all distributees must be given service of process)

D. Two Types of Trusts (first two are Express Private Trusts – our focus)
1) Revocable Lifetime (Living) Trust (aka Inter Vivos Trust): Made while alive, creator is grantor or
settlor.
i. In NY, stringent delivery (of res) requirement in self-declared trust.
ii. 7-1.18: Revocable v. Irrevocable: Irrevocable is the default →If you don't say that a trust is
revocable then it is irrevocable
2) Testamentary Trust: Made in a will, creator is testator.

E. Parties of Trust:
a. Three parties to a trust:
1) Creator: [grantor, settler, testator] Person who creates trust during his lifetime [inter vivos/living
trust] or by will [testamentary trust; testator]. Creator may name herself or somebody else as
trustee & beneficiary [must be at least one other beneficiary to be valid]
i. The creator may require the trustees to pay out all income, or give the trustee discretion to
pay out income or not or choose among beneficiaries
ii. Grantor may revoke the trust
iii. Creator Cannot pay income & remainder to himself – must be another beneficiary; but can
name herself as trustee, principal beneficiary, income or remainder beneficiary.
2) Trustee: legal owner of property who holds legal title. Trust won’t fail for lack of trustee, court
will appoint one.
a. Transfer of property (real or personal) to a trustee.
b. A trustee has strict fiduciary responsibilities to the beneficiaries and holds it for them.
c. A trustee may invade the principal (corpus / res).
d. A trustee may also be given the right to accumulate the income instead of paying it out.
e. Settlor of inter vivos trust can name himself / herself as trustee (a self-declared trust) or
name a third party as trustee.
f. Powers in a trust are FLEXIBLE!
3) Beneficiaries: have equitable/beneficial interest in the trust property party for whose benefit
the trust was created, and for whose benefit the trustee holds title to the trust property.
a. They have equitable or beneficial interest.
A beneficiary may have a right to the income of the trust. Property is often paid to
someone else - “remainder man”.
A beneficiary of a life estate has the right to stay in the home for life.
b. There has to be legal title in the trustee and a beneficial title in at least one beneficiary.
c. At least ONE of the beneficiaries CANNOT be the trustee. There has to be a split/2
people who have one legal title and one equitable interest.

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 d. At least one of the beneficiaries cannot be the trustee. Trust will fail for lack of
beneficiary. Holding equitable title confers rights to enforce the trust. Beneficiaries’
interests in trust can include: interest income, interest in remainder [income interest &
remainderman]. Must be identifiable.
e. Net income= whatever the principle earns
F. Powers Conferred to Trustee’s – Fiduciaries Powers
i. Delineates the broad powers fiduciaries automatically acquire when the will/trust does not provide
otherwise. It applies to trusts and estates whenever created, unless the instrument provides otherwise.
Only applies to EXPRESS trust
ii. Authorized to accept additions, acquire remaining undivided interest, invest estate property, take
possession/collect rents from property, mortgage property, register stock, make distributions, execute
agreements, etc.
G. About Lifetime trusts:
i. Lifetime trusts are not to be treated like wills
ii. Elements:
a. Has to be a specific trust or res or corpus (certainty of subject)
i. Corpus or Res: Trust law requires that there be an identifiable trust property (sometime
called the trust res). Any legally recognized property interest that is transferable can
be the subject of a trust.
a. Real estate  recorded to transfer
b. Non-registered:  signed in presence of two witnesses (§ 7-1.17)
c. Brainard v. Commissioner (pg 477): in order to avoid the tax, let the trustee
does the transactions instead of doing it by himself.
EXCEPTION – Life insurance trust does not need an identifiable trust corpus.
b. There has to be a trustee (could be appointed by the court  not a necessary condition as
other three)
a. Morsman: below and Folks below (see below)
b. Merger doctrine §7-1.1 (When trust interest not to merge)
c. There has to be identifiable beneficiaries (certainty of enforcer)
d. There must be a specific trust interest (certainty of intent)
iii. § 7-1.14 Who can Make a Lifetime Trust? → any person over 18 with mental capacity
i. Any person as defined (natural person, association, form, state, corporation) may by
lifetime trust dispose of personal or real property. Must be 18 yrs. or older.
iv. What Property can be Disposed of? → every estate in property, estate can be the interest person has in
property or aggregate of property which a person owns
i. Estate in Property: Defined: is any interest you have in property (life estate, timeshare,
etc...)
v. The spouse has the right to election in the assets of a revocable trust §5-1.5 (above)
vi. Irrevocable trust is effective Against the creditor unless it is made in fraudulent.
H. Formalities of Trusts [§7-1.17]
j. Exeuction of Trust:
i. (1) In writing,
ii. (2) signed by the creator and at least one trustee (unless the creator is the sole trustee), and
iii. (3) either acknowledged like a real estate deed ready for recording OR signed by two
witnesses (non-real estate scenario)

k. Amendments/Revocation:
i. Must be in writing (unless otherwise stated)
ii. Has to be in front of witnesses in manner for executing trust.
iii. Any amendment will take effect as of the date of such execution and must deliver
written notice of amendment to another trustee within a reasonable time
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 iv. Failure to give notice does NOT affect validity of revocation/amendment
 You can say that you don’t want the amendments or revocations to have to adhere
to such formalities, but if you don’t say it you must follow them.
 Majority rule if amendment
l. Revocation of Lifetime Trust [EPTL §7-1.16]  irrevocable unless it expressly provides that
it’s revocable
i. Irrevocable is default.
ii. If a trust is revocable, a grantor may amend or revoke it by a document executed with
the same formalities as the initial trust instrument. EPTL §7-1.17
m. EPTL §7-1.18 Funding: valid as to any assets transferred to the trust but you have to actually
transfer the assets. (only applicable to the lifetime trust)
i. Property MUST be transferred! A lifetime trust shall be valid as to any assets therein to
the extent the assets have been transferred to the trust. Transfer is not accomplished by
recital of assignment, holding or receipt in trust instrument
a. In a case there the creator is the sole trustee, Transfer shall mean:
i. In the case of assets like real estate, stocks, bonds, bank and brokerage
that can be registered recording of deed in county clerk’s office or
completion of registration in name of trust/trustee (need to finish
recording before you transfer)
a. Failed gift is not always a trust
ii. Other Assets (securities, personal items, bank accounts)  written
assignment with particularity, must be signed.
b. Person INTENDED to make a gift…writes out a new deed BUT keeps it in their
own possession (doesn’t record it) → Here, it can be argued that the T intended to
make a trust…but wanted to remain trustee of the trust – self-declared trust;
therefore, didn’t turn it over to anyone.
ii. A trust is not going to be invalid if there is no trustee…court will step in and appoint a
successor.
iii. Example of transferring assets into a trust
a. How do you transfer cash into a trust?
i. Open a bank account in the name of the trustee ("irrevocable lifetime trust
created on X date" - name the trust)
ii. OR you could hand cash to the trustee
b. How would you transfer a car?
i. Put title in name of trustee
c. How do you transfer a house?
i. Transfer the deed into the name of the trustee
ii. RULE: whenever you put real estate into a trust ' transfer the deed and
record it in the name of the trustee
d. How do you transfer securities?
i. Register them in name of trustee
e. How do you transfer stock certificates?
i. Have the bank account reissued in the name of the trustee
f. How do you transfer a piano into a trust?
i. Must assign the property
g. "I, owner, transfer X items to trustee"
i. How do you transfer non-register able things?
ii. Written assignment describing the asset w/ particularity (assignment = legal
document that transfers assets from one person to another)
E. Merger: if there is no split between legal & equitable title  trust is invalid

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 iv. Common law theory that 2 ownership interests will merge into full ownership (right to legal title &
equitable title) – invalid because you need an enforcer available
v. In a trust, ownership of the trust corpus is split (pg. 486)
a. Legal title is in the trustee, and equitable title is in the beneficiaryif there is no split, the trust is
invalid, on the rationale that there needs to be an enforcer
b. Hypo: - To A and B as trustees and required to pay income to A and B and remainder to X. →
This would not violate the merger doctrine (aka §7-1.1) because X has a right to enforce the trust.
If A does something wrong B can sue and vice versa—no merger because X can enforce.
c. Hypo: - to A and B, in trust for A and B, where their interest is concurrent. → their beneficial
interests are separate from their legal interests. (either can enforce against each other)
d. Hypo:- To A, in trust for A and B, where interests are concurrent → yes merger, but B can enforce
against A.
e. Hypo: G transfers to A in trust for A and B, where the beneficial interests are successive - for
example, income is to be paid to A for life, with principal then to be transferred to B.
i. This is valid under §7-1.1 (Merger Doctrine) b/c it says, "A trust is not merged or invalid
b/c a person, including but not limited to the creator of the trust, is or may become the sole
trustee and the sole holder of the present beneficial interest therein, provided that one or
more other persons hold a beneficial interest therein, whether such interest be vested or
contingent, present or future, and whether created by express provision of the instrument
or as a result of reversion to the creator's estate."
vi. EPTL §7-1.1: When Trust Interests Not to Merge
a. As long as there is a person who can enforce the trust then does not matter if present interest in
trust merges into the same person. A trust is not merged/invalid because a sole trustee has a
beneficial interest, so long as there is another beneficiary to enforce the trust.
b. Can be a trustee & holder of present beneficial interest provided that one or more other persons
hold some type of beneficial interest (can be a trustee & holder but need other beneficiaries)
F. (1) certainty of subjective (corpus) – must be transferred into the trust (real estate – record, personal property
signed; bank account named under trustee’s name, etc)  §7-1.18  funding the trust
G. (2) Certainty of Beneficiaries: more details & relating to the doctrine of merger
1) MUST: Specific and ascertainable intended beneficiaries → there must always be some unique
beneficiary who can “enforce” on the trust against the trustee.
a. I.e., My grandchildren. Yes! Doesn’t matter that they aren’t born yet
b. I.e., People who were in my law school class. Yes.
c. I.e., remainder to G’s friends = INVALID, indefinite class.
i. BUT remainder to such of G’s friends as A shall select = VALID
2) Morsman: “Self-Declared Trust”This was a beneficiary fail! invalid trust because there was no
existing beneficiary named so there was no present severance of legal & equitable titles to property.
Morsman was the creator and beneficiary [claimed his brother who was alive was his heir BUT heir
doesn’t come into being until you die]
a. Facts: To avoid a high income-tax bracket Morsman put his securities into the self-declared trust.
The trust document provided that the trust income was to be paid to Morsman himself or for life.
On termination of the trust, the principal was to go to his issue, or to his widow if there were no
issue or to his legal heirs if he had neither issue nor a widow then living.
b. Held: Court held that there was no trust created because no existing beneficiaries were named
and consequently, there was no present severance of the legal and equitable titles to the property.
c. No one alive could have enforced the trust!
3) Folk v. Hughes:“Unborns” (pg. 484)
a. Facts: At the time of the transfer, a father gave land to his son (son was married but childless
and had legal title) and remainder to his son’s children (unborn). A child was born later and the
court found that a valid trust had been created for that child at the time of the original transfer
(when he was unborn).
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 b. Held: Court held this to be different than Morsman and therefore a trust was created at the time
of the original transfer.
 Difference: Morsman was a self-declared trust whereas Folk trust
was created by transfer of legal title.
i. Grantor→ Trustee (Folk)
ii. This says “do something with the trust to accumulate income
and pay remainder to unborns”→ grantor’s interest is a
reversionary interest (makes it presently enforceable)
iii. Because they are unborns it’s a resulting trust. So now you
have legal title in 1 (trustee) and equitable title to the unborns.
iv. Sum: In Morsman he named himself as trustee and therefore
he has both legal and equitable title. In Folk, T had legal title
and resulting trust gave an equitable title to the unborns. Folk
did not name himself trustee but rather someone else.
***father (grantor) has no remain legal interest in the trust.
But the father has reversionary interest. If the trust fails, then
the interest will go back to the father, who can enforce the
trust.
4) Trusts that simply leave a gift to an indefinite class fail as trusts. (examples, pg. 487)
a. Nuance: A mandatory power of appointment, where the trustee can select from an indefinite
class, will cause the gift to fail if the objects are not sufficiently ascertainable that a court can
enforce against the trust if the trustee appoints improperly.
b. Exception: A discretionary power of appointment, where anyone besides the trustee can select
from an indefinite class, will not cause a trust to fail, because the holder has no duty that can be
enforced against anyway.
c. Examples
i. invalid (“to my friends” is clearly indefinite)
ii. invalid (Trustee has mandatory power, and G’s friends are indefinite, so fiduciary duty
will cause trust to fail)
iii. valid (A has discretionary power to select b/c A not a fiduciary)
d. Clark v. Campbell: trust failed because the settler has not defined the trust sufficiently to enable
the court to execute (saying trustee shall select one among the friends  mandatory power) (pg.
490)

H. (3) certainty of Intent: need intent & delivery of asset

1. In order to create a trust: Must demonstrate that you had the intention (manifestation) → “In order for
any trust to exist…there must be a specific trust res/corpus, a trustee, identifiable beneficiaries and
specific trust intent.”
2. Farmer’s Loan & Trust Co: Doesn’t accept Self-Declared Trusts
a. Facts: Initial step was to create a trust worth $5,000 with Farmer’s Loan as trustee. Income
stream to herself and principal split in ½ to her son and ½ to her grandchild. She also had a case
pending in the Surrogate’s Court→ she supposed to get 2.3 million dollars from a trust from her
husband. Her money hadn’t been transferred yet (US Trust Co. was the trustee of this trust).
She had sent a letter to Farmer’s Loan in which she states that she hands over the power of
attorney to them to authorize them to receive from US Trust all securities and property coming
to her under the decree - and to transfer such securities and property to themselves (Farmer’s
Loan) as trustee.
i. Farmer’s Loan only acquired the amount that was ready to be distributed ($850k became
subject to the provisions of the deed of trust). $1.4 million was on the way and then
unexpectedly she died. What will happen to the $1.4 million? → If this money doesn’t go

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 into the Farmer’s Loan trust…it is going to PASS under her will. AND her will says
something different from the trust.
b. Held: The court held that the power of attorney expired when the T died – SO Farmer’s Loan
couldn’t get the money under this.
i. BUT there were also a couple of letters to Farmer’s Loan…could they be deemed an
assignment?  NO! There was no evidence of an intention to make a present transfer. She
could have written this at any time and said that they weren’t going to get this. THUS...there
was no actual transfer of money to farmer’s loan
ii. The court found that the transaction, failing as a gift, because inchoate or incomplete, is not
to be sustained as the declaration of a trust. The donor had no intention of becoming a
trustee herself. The donee (Farmer’s Loan) never got title, and so could not hold it for
another.
iii. The court refused to accept “self-declared” trusts (all though other states have)
iv. In NY, intent and delivery are interrelated (need both to meet the formalities)
v. Every trust must be “funded” (have a corpus) EXCEPT for “life insurance trusts”
vi. CRITICISM → T’s INTENT is clearly being violated here. It seems contrary to what she
intended…BUT the law seems to be right. We don’t know if she intended to make this trust
had she lived.
3. Precatory Language: Precatory means that you are requesting BUT NOT imposing a duty.
i. You want another person to provide for the beneficiary. The distinction is between imposing legally
enforceable duties on the devisee and merely seeking to impose a moral obligation on the devisee,
unless testator/other transferor manifests an intention to impose enforceable duties on the
transferee, intention to create a trust is lacking and no trust is created.
i. Need to be specific in trust in directing what you want so grantor’s intent is clear
ii. Colton: testator made a will & questionable trust but left everything to his wife and
‘intended’ that she care for his mother and sister. W decided NOT to give them anything.
a. Court held this was a valid trust – had to look at intent of grantor and his intent
was for W to provide for them (W had a duty to obey grantor’s intent to provide
for mother & sister)
b. To find a trust, need separate title between legal title (Wife) & beneficiaries
(mother & sister) who have enforceable duties  Testator clearly stated he
recommend his W care for them
i. The court found that the time and circumstances disabled him from
specifying satisfactory details concerning a provision for his mother
and his sister, but he did not forget he owed them care and
protection. Because his last will was made on his death bed, he
didn’t have time for specifics. Instead he clearly stated he
recommend that his wife care and protect his mom and sister and
request her to make a gift and provision for them as in her best
judgmentAccording to the court under the circumstances, T’s
intent was to impose a legally enforceable duty on his wife and not a
moral obligation.
c. Key: In determining whether the transferor intended to impose an enforceable
legal duty rather than a moral obligation the following factors must be
considered:
i. The specific terms and overall tenor of the words used.
ii. The definiteness or indefiniteness of the property involved
iii. The ease or difficulty of ascertaining possible beneficiaries and their
interests.
iv. The interests or motives and the nature and degree of concerns that may
reasonably be supposed to have influenced the transferor.
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 v. The financial situation, dependencies, and expectations of the parties.
vi. The transferor’s prior conduct, statements and relationships with respect
to possible trust beneficiaries
vii. The personal and any fiduciary relationships between the transferor and
the transferee.
viii. Other dispositions the transferor is making or has made of his or her
wealth; and
ix. Whether the result of construing the disposition as involving a trust or
not would be such as a person in the situation of the transferor would be
likely to desire.
d. Problem on Precatory Language  In 1950, T’s brother B-1 died, survived by
his children M-1 and M-2. In 1970, T made a will saying, “I give my residuary
estate to my 2 sisters, S-1 and S-2 and my brother, B-2 who are advised of my
charitable wishes.” S-1, S-2, and B-2 predeceased T. B-2 left a son J, M-1 and
M-2 survived. (Matter of Corbett)
 If he dies intestate, M-1 and M-2 inherit along with J
 1st Theory: Anti-Lapse would give B-2’s share to J and J would receive S-
1 and S-2 thru residue of a residue. It doesn’t seem fair to give it to M-1
and M-2 because he purposefully left them out. (actual holding of the
case). The language is just precatory and therefore is disregarded.
o Problem: He may have ignored M-1 and M-2 only because his
other siblings were alive and he wanted it to go to his siblings only.
 2nd Theory: This may have been considered a trust but all the trustees
died…and how could the court properly appoint a trustee when that
person wouldn’t know what T’s intentions were? If this was a trust that
failed, T would die intestate.
 Final Holding – J got it. The court said that this went under anti-lapse. To
get to this holding…the appellate division held that this property was
subject to mere precatory language.
o I give this my brother and sisters you are advised of my charitable
wishes. They had a moral obligation to give to charity and no legal
obligation. So if the T did not intend to make a trust, it passed to
the bros and sisters…and since they were all dead, passed under
residue of a residue to James.

Problems March 28 Formality 7-1.14 et seq.

1.G attempted to create a lifetime trust to pay income to himself for life, remainder to his wife W, by drafting the
document, signing it in the presence of a witness, having the trustee sign it, and transferring $100,000 in cash to
the trustee. Is this a valid trust?
No. EPTL 7-1.17. The formalities require either two witnesses or an acknowledgment sufficient to record a
deed in the county clerk’s office
2.G attempted to create a lifetime trust to pay income to himself for life, remainder to his wife W, by drafting the
document, signing it, having the trustee sign it, having their signatures notarized like a real estate deed ready for
recording, and transferring $100,000 in cash to the trustee. Is this a valid trust?
Yes. G satisfied all the formalities of EPTL 7-1.17
3.T attempted to create a testamentary trust by executing a will in 2016. The will included a clause that gave
$100,000 to a named trustee to pay income to T’s husband for life, remainder to her children. She died this
morning. Is this a valid trust
Yes, provided the will was properly executed and can be admitted to probate. EPTL 3-2.1
4.G properly executed a lifetime trust whose terms were to pay income to his wife W for life, remainder to their

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children. The trust had no other terms. Is this trust revocable or irrevocable
Irrevocable under NY default rule – 7-1.16
5.G properly executed a revocable lifetime trust whose terms were to pay income to her husband H for life,
remainder to their children. The trust had no other terms. G and H divorced. What happens?
H forfeits his interest in any revocable trusts under EPTL 5-1.4(a) “by revocable trust” (divorce only forfeits the
revocable trust)  divorce does not forfeit the irrevocable trust.
6.G properly executed an irrevocable lifetime trust whose terms were to pay income to her husband H for life,
remainder to their children. The trust had no other terms. G and H divorced. What happens?
Because it is irrevocable and trust is still there. Because 5-1.4(a) only applies to revocable trust.
7.G properly executed a lifetime trust to pay income to his wife W for life, remainder to their children. He named
himself as sole trustee. Intending to transfer his house to the trust, he executed a new deed to himself as trustee.
On the way to the county clerk’s office to record it, he died in a crash. Has the house been transferred to the trust?
No, did not recorded and not a valid transfer. Sole trustee. 7-1.18
8. T properly created a testamentary trust to be funded by his apartment building and to pay income to his wife for
life, remainder to their children. He appointed Fiduciary Trust Company as trustee. Two weeks after his death,
his executor transferred the apartment house to Fiduciary Trust Company as trustee by executing a new deed and
recording it in the county clerk’s office. Has the apartment house been transferred to the trust
Yes, it has been recorded under the name of trustee and thus it is a valid transfer.
9. G properly executed a lifetime trust to pay income to his wife W and remainder to their children. He named his
two sisters S-1 and S-2 as trustees. The trust had no other provisions. Five years into the trust term, S-2 died
Does the trust fail? If not, what happens? Not fail, if there is not contrary direction of the creator, S-1 becomes
the sole trustee EPTL 11-1.1(b)(11)
Assume that another two years later, S-2 died. Does the trust fail? If not, what happens? Not fail, unless creator
directs otherwise, vest in the court and the court may appoint successor. EPTL §7-2.3.
10. T’s will properly created a testamentary trust to pay income to his daughter for life, remainder to her children,
and appoints his sister S as trustee. He included a clause in his will that exonerated S for all of her actions as a
trustee and forbade his daughter from bringing any action or proceeding against S. Is this clause valid?
The clause is not valid as against the public policy § 11-1.7(a)(1) (this is testamentary trust, not applies to life time
trust)  majority lifetime trustee cannot exonerate gross negligence or bad faith. But can exonerate reasonable
care, diligence and prudence.
11. Can a trustee:
mortgage trust property? Yes 11-1.1(b)(5)(D)
borrow money? No, that power isn’t in EPTL 11-1.1 cannot never
borrow money from trust, here the problem is borrow
from external parties.
compromise claims against the trust? claims by the Yes 11-1.1(b)(13)
trust?
exercise options the trust holds? Yes, 11-1.1(b)(16)
rent property owned by the trust? Yes, 11-1.1(b)(5)(C)
repair property owned by the trust? Yes, (b)(6)
insure property owned by the trust? Yes, (b)(4)
buy trust property from the trust? No, self-dealing unless getting court’s permission
commingle his own money with the trust’s? No 11-1.6
12. Can anybody serve as a trustee? If not, what are the limitations?
No, anyone except infant, want of understanding, non-domicile alien, felon, dishonesty, substance abuse 707
Surrogate court procedure act
13.Can a trustee resign whenever she wants to?
No, once accept, must ask permission from the court
14. Can the court remove a trustee? If so, for what?
Yes, upon interested person’s application, the trustee is insolvent, or solvency is imminent or other unsuitable
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situations.
Surrogate Court 711 and 719 (commingle  remove without notice)

04/02 Trust Problem Review

Your client has properly executed a lifetime trust. She named herself as trustee and her wife as successor trustee
when she dies.The terms of the trust are “income to the grantor for her life, then to her wife for her life, then
remainder to their kids.”Assume they have two kids
1.Does the trust fail from the beginning because of the merger of the grantor’s legal and equitable interests in the
trust?  NO
2. Does the grantor’s income interest fail because of the merger of the grantor’s legal and equitable interests in the
trust?  No
3.When the grantor dies and her wife becomes trustee, does her income interest fail because of merger? no
4.Assume that while the grantor was trustee, her wife detected some illegal activity the grantor was engaging in
with trust property, Can the wife bring a suit against the trustee?  yes ; Can the kids bring a suit against the
trustee?  Yes
5.Suppose two years after the grantor created the trust, she resigned as trustee. Does the trust fail for lack of a
trustee?  No
6.Change the original facts and assume that the trust was to pay income to the grantor for life, then income to her
wife…then remainder to whomever the wife chose as beneficiaries. Assume further that the wife didn’t have a
will and didn’t exercise the power of appointment. What happens to the trust? IT REVERTS TO G’S ESTATE.
New Question
Assume that F’s will created a trust and named his son S as trustee. He gave S ordinary trustee powers. Income
was payable to F’s four kids for their lives, remainder to all of the testator’s grandchildren in equal shares. The
will transferred into the trust F’s house and $200,000 in cash. S properly obtained letters of trusteeship from the
Surrogate’s Court.
1.Should S take the whole $200,000 and invest in Facebook  no obligation to diversify
2.Could S buy the house from the trust for what he considers FMV? No
3.Could S withhold income from his sister who had become addicted to opiates?  NO
4.Could S resign? only with court permission

I. Lapse – EPTL §2-1.15

1. Applies to both lifetime and testamentary trust
a. § 3-3.3 applies only testamentary trust and § 3-3.4 (residue of residue applies only if the partial
residuary become ineffective at the time when creator dies)
2. Hypo: T created a testamentary trust (created in T’s will) to “pay the income to her son S for life,
remainder to S’s daughters D1 & D2 if they were alive at S’s death.” D1 predeceased Testator. How
should the trustee distribute the remainder? (for answer, see the chart below)
a. Analysis: § 3-3.4 applies when residue of a residue partially fails when as of the date of
creator’s (T’s) death. Here, it become ineffective when S’s death, not creator’s death  not
apply here.
b. §2-1.15: When remainder of a lifetime or testamentary trust passes to 2 or more designated
beneficiaries, and such remainder is ineffective in part, and no effective alternative
disposition has been made, the ineffective part passes to the other designated beneficiary
a. If there are 2 or more other designated beneficiaries, ineffective part passed to such
beneficiary ratably – inproportion that their respective interest in such principal bear to
the aggregate of the interests of such designated beneficiaries in such principal.
b. Testamentary trust – trust that is created in a will
c. Remainder – what is paid out after death of income beneficiary

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 d. This statute is triggered upon the death of income beneficiary as opposed to
testator’s death.
c. NOTE: This section does not abrogate the rule that a remainder interest is vested UNLESS
the trust instrument specifically states a condition (see below for types of vested remainder)
 see problem 4 below.
a. Example: If grantor makes a trust to pay income to herself for life, remainder to A, B,
and C, and C predeceased her, his vested 1/3rd passes as part of his estate.
b. If you do not state a condition, there is no condition in a Trust
c. **ONLY IF THE REMAINDER INTEREST IS NOT VESTED DOES THIS
SECTION PREVENT A LAPSE BY PASSING THE PREDECEASED
REMAINSWEMAN’S SHARE PROPORTIONATELY TO THE OTHER
REMAINDERMEN
Other Lapse Examples
1. T created a testamentary trust to pay the income to his son S for life, remainder to S’s daughters D-1 and
D-2 if they were alive at S’s death. D-1 predeceased T, survived by two children. How should the trustee
distribute the remainder?
D-1’s kids get her half 3-3.3 (this is the testamentary disposition and
D-2 gets her half
EPTL 2-1.15 and 3-3.3 (attention again – 3-3.3 applies to testamentary trust only, not applicable to life trust!!)
2.Suppose T created a testamentary trust to pay income to X for life, remainder to his children A and B if
they survived T. A predeceased T, survived by two children. How should the trustee distribute the
remainder
All to B. Because 2-1.15 applies and 3-3.3 does not apply to this case because the condition is not met (A
predeceased T)
3. Suppose G created a lifetime trust to pay income to herself for life, remainder to her children A and B.
A predeceased G, survived by two children. How should the trustee distribute the remainder?
Because it is a lifetime trust  3-3.3 does not apply
A and B have a future estate indefeasibly vested  A’s estate gets half and B gets half.
4. Suppose T created a lifetime trust to pay income to his wife W for life, remainder to his children A and
B. A predeceased W, survived by two children. How should the trustee distribute the remainder?
Half to A’s estate, half to B. That interest was vested on creation because there were no conditions
No condition here, A and B have the indefeasibly vested future estate  doesn’t fail!! So no 2-1.15.
5. Suppose T created a lifetime trust to pay income to his wife W for life, remainder to his children A and
B if they survived W. A predeceased W, survived by two children. How should the trustee distribute the
remainder
A has a future estate vested subject to condition precedents. Because she predeceased W  no interest in
remainder. 2-1.15 applies and 3-3.3 doesn’t. (3-3.3 applies to testamentary disposition only)

J. Trustee
1. Becoming a Trustee:
a. Anyone can be a trustee EXCEPT:
i. Infants
ii. Non-domiciliary aliens
iii. Anyone without a “want of understanding” about what it means to be a fiduciary.
2. Power of Trustee to Resign
a. Trustee can ALWAYS disclaim a trust….BUT once accepted, a trustee can ONLY resign with
permission of the court
i. Often courts deny such permission.
ii. However, if you put in your trust that trustee may resign at any time than he won’t have
to seek court’s permission
b. The court can remove, accept a resignation from, or appoint a new trustee.
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 c. EPTL §7-2.6: Supreme court may remove a trustee (1)upon the application of the trustee, (2)
upon the application of any interested person + trustee is insolvent, or insolvent is immeinent or
apprehended or other unsuitable reasons, and (3) appoint a successor trustee
3. A trust doesn’t fail because no trustee is designated UNLESS the creation depends on a specific person
serving as trustee.
a. A court will appoint a trustee as necessary and appropriate.
b. Failure or lack of trustee is not a fatal to a trust!
4. Devolution of Trustee's Title Upon Death
i. When the trustee dies, the estate vests in the supreme or surrogate’s court, which appoints a
successor trustee unless the creator has directed otherwise
ii. EPTL §7-2.3: in a trust that has sole trustee, when the sole trustee dies, unless creator directs
otherwise, the trust vest in the court and court may appoint a successor trustee
5. Multiple trustees: [EPTL §10-10.7]
1) When three or more people jointly hold power as trustee, a majority can exercise it.
a. If there are 2 trustees, BOTH have to agree
b. If there are 2+, there must be a majority
c. A dissenting trustee should put it in writing to avoid liability.
2) If there is 2 trustee & 1 dies: the trust instrument will always prevail →
i. If it says that it doesn't want just 1, go to court & get an alternate named
ii. BUT if the will is silent on this, then one can continue to serve solo → joint tenant with
a right of survivorship
6. Trustee fee (not tested): surrogate court procedure 2307, 2308. Letting client know in writing in a
separate document from the will regarding executor’s and trustee’s various types of fees. Can be
percentage fees or flat fees  disclosure is important.
7. Hays v. Regar (pg. 510) and Olliffe v. Wells (513)  secret trust.
K. Trust Administration
1. Issue because powers of trust administration are held by trustees, who have no personal stake in the
effect of their decisions on the trust & beneficiaries who do bear risk of asset loss have NO control over
trust’s administration
2. Central fiduciary duties of trust law: (i) duties to inform/account, (ii) duty of loyalty, (iii) duty of
prudence, (iv) duty of impartiality
3. Limitations on Powers & Immunities of Executors/Trustees – courts vary on how they treat lifetime
trusts (can exonerate trustees EXCEPT for bad faith & gross negligence). Grantor cannot exonerate
trustee for bad faith, reckless indifference to beneficiaries’ interests or personal profit through breach of
trust. Exoneration cannot be against public policy
a. EPTL §11-1.7:
i. (a) it is against the public policy to
1. exonerating of fiduciary from liability for failure to exercise reasonable care,
diligence, and prudence, or
2. granting the power to make a binding and conclusive fixation of the value of any
assets for purposes of distribution, allocation or otherwise
ii. (b) such attempt shall be void but the remaining terms of the will remains effective

J. Fiduciaries duties
1. Will: What Does a Fiduciary Do?
i. An executor gets appointed after a decedent dies.
ii. They sign an oath that they will carry out their duties well.
iii. Sometimes, they have to post a bond…that assures if he does something wrong, the surety
company will pay out the damages. An executor’s job is to marshal everything…pay it all out.
Not really an investment goal…a marshaling and pay out!
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 iv. After executor makes distribution to all beneficiaries…he usually makes an accounting.
2. Trust: What does a trustee do?
i. That person receives the assets and administers them.
ii. His job is to make the trust productive.
iii. Has to hold the property, make it productive…and follow the trust instrument (i.e., pay it out to an
income beneficiary, etc.)
iv. Mandatory rules include the trustee’s duties “to act in good faith and in accordance with the terms
and purposes of the trust and the interests of the beneficiaries.” Default rules include: duty of
loyalty and duty of prudence. 4 Fiduciary Duties of Trust Law: (i) duties to inform and account,
(ii) duty of loyalty, (iii) duty of prudence, (4) duty of impartiality.
v. Person is Unqualified to be a Trustee if He: (pursuant to SCPA §707)
a. Infant or Felon
b. Non-domicilliary alien
c. unfit (drunkenness)
d. clueless as to what it means to be a fiduciary
vi. Prudent Investor Act [§11-2.3]
a. Fiduciaries (trustee’s) must always reasonable care and skill—The prudent investor act
i. Prudence Act =Optional - Can provide Otherwise in your will, OR if you say
nothing in your will then trustee must abide by prudent investor rule by default
ii. Standard: Reasonable care, skill, or caution, as a prudent investor would act for the
entire portfolio Liable for performance on the whole portfolio not each investment.
b. Purpose is to invest the trust assets to meet the needs of beneficiaries and creator’s intent.
(i.e. manage trust in a way that creates reasonable income for income beneficiary &
remainder for remaindermen)
c. §11-2.3(b)(1) Doesn’t matter if you lose money—standard of conduct, NOT an outcome
or performance
d. §11-2.3(b)(2): Prudence rule:
i. Exercising care, skill and caution to make investment and mgmt decisions
ii. As a prudent investor would
iii. For the entire portfolio
iv. Taking into account the purposes and terms and provisions of the governing
instrument
v. Must consider
a. Size of the portfolio
b. Nature and length of the fiduciary relationship
c. Liquidity and distribution reqs
d. General economic conditions
e. Tax consequences of the things you invest (ex: capital gains taxes)
f. Inflation / deflation
g. Expected total return of portfolio – including both income and appreciation
of capital
i. Competing interests (needs of present beneficiaries and those of
future distributions)
h. Can consider beneficiary’s financial situation
e. §11-2.3(b)(3) Trustee is required to: (Under the prudent investor standard)
a. Pursue strategy for present & future distributions (i.e., make present and future
beneficiaries happy).
b. Consider all factors (economic, tax, etc. ...)
c. Diversify assets, unless Trustee reasonably determines it is in the beneficiary’s
interest not to diversify.

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 i. Janes Case - Kept Kodak stock and didn’t diversify so that the estate lost
SOOO much money. The court held that there is no duty to diversify. Since
1995, it is in the statute. Diversification may be applied but is not required.
ii. Ex: family corporation  want to keep stock majority ownership within the
family
d. Decide whether to retain or dispose trust’s initial assets
f. §11-2.3(b)(4) Trustee is permitted to: (Under the prudent investor standard)
a. Invest in any type of investment (consistent w/ PIS)- Notably, no investment is
inherently prudent or imprudent.
b. Consider the income and resources of beneficiaries
c. §11-2.3(b)(4)(C)Delegate investment and management functions.
i. §11-2.3(c) Can hire an investment manager. BUT if you do delegate…you
have to be reasonably careful in choosing that person….be careful in
outlining your objective to them….have to review what that person has
done AND have to control the costs.
d. Limit costs – to the extent they are appropriate and reasonable.
e. Solution to reconcile between income needs (income beneficiary) and capital gain
appreciation needs (remainders)
a. §11-2.3(b)(5) trustees are allowed to make adjust, like using principal to
pay income beneficiary.
b. §11-2.4: Optional unitrust provision, if opt for unitrust  then apply 
[(V1+V2+V3)/3] * 4% (three years); [(V1+V2)/2]*4%; [V1]*4%.....all
begaining of the first business day current valuation.
g. Remedies: Trustee can exercise ONE of the following (cannot switch back & forth) as to
the income interest
1. §11-2.3(b)(5) The trustee’s power to adjust: The trustee can make equitable
adjustments to income & principle, e.g., sell some security shares and give the
proceeds to the income beneficiary—to balance the interest of income and
remainder beneficiaries.
a. Income = money or property that a fiduciary receives as current return from
a principal asset, and
b. Principal = property held in trust for distribution to a remainder beneficiary
when the trust terminates
c. He can pay out actual income the trust earns but also pay some principal
to income beneficiary every year depending on income actually earned.
i. e.g., If there is only 1% of income being paid…can take out of the
principal in order to give the income person a reasonable amount of
income).
d. Trustee cannot make adjustments to charitable trusts
e. Note: A court will not overrule a trustee’s decision to exercise or not to
exercise an adjustment power unless it finds that he has abused his
discretion.
2. §11-2.4 Power to establish a unitrust: The trustee can opt to pay a flat 4% of the
increase in the value of the trust to the income beneficiaries (regardless of income
actually earned).
a. No need to distinguish between what is income and what is principal
b. So, the income beneficiary benefits from an increase in the principal—the
interests are aligned.
c. It doesn’t pay out income, it makes an annual payment to someone that we
think of as income beneficiaries, but it actually pays a flat 4%. (e.g.,
Assume, the assets are worth 100, then the unitrust annual payment is 4%.
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 Now assume, the following year the assets double in value. Now the
unitrust payment is 8 (b/c 4% of 200).
d. E.g., fifth year, add third, four and fifth together and divided by 3.
h. Abuse of discretion standard (for adjustment too)– a court will not overrule a trustee’s
decision unless it finds that he has abused his discretion.  prevents Trustee from being
dragged into court all the time
i. Standard=Abuse of discretion – a court will not overrule a trustee’s decision unless
it finds that he has abused his discretion.
a. To the extent that the abuse results in no/small distribution ct will order a
distribution from the trust.
b. To the extent the abuse results in too large a distribution, the court can
reduce future income distributions or order repayment
i. Exoneration from Liability :
1. Executors and testamentary trustees: CANNOT be exonerated from liability for a
failure to satisfy the duties of prudence, diligence and care
2. Lifetime trustees: CAN be exonerated from liability, EXCEPT not for losses caused
by bad faith OR gross negligence
a. Dissenting fiduciaries should do so in writing to avoid liability for the
majority’s decision
j. No commingle  remove
k. Matter of Janes: Trustees failed to divest estate of stock that had dropped in value and they
should’ve sold the stock when grantor died. Trustees had all the information a prudent
investor would’ve needed to conclude that the percentage of Kodak stock in estate’s stock
portfolio was excessive and should’ve been reduced in light of estate’s over-all investment
portfolio and financial requirements. Court held for the grantor and stated they should
determine value of the stock on the date it should’ve been sold and subtract from that
figure the proceeds from sale of stock or if stock is still retained by estate, value of stock at
time of accounting.
i. If you find out trustee was not prudent you must calculate the damages
ii. Damages = value of stock when it should’ve been sold (–) value of stock that
it was sold at
l. Matter of Green: the lawyer violates the duty of loyalty. Greens are married couple. They
have a land. They create a charitable trust and put the land in the trust. Lawyer is the co-
trustee with Greens and bank. Husband died. They sold the farm but under market price
because of the liquidity problem. They did not advertise and sold to the lawyer’s client.
The court held that the lawyer violate his duty to get the highest price possible.
i. What The lawyer does is not self-dealing per se violation.
ii. But violate the duty of loyalty
Problems are answer in assignment on April 2

L. Spendthrift Trusts
i. Issue: Whether a trust beneficiary can sell a trust or otherwise transfer it & whether his creditors can
reach it.
a. General Rule: Interests in trusts are alienable
b. Spendthrift trusts = trust that imposes a disabling restraint on the sale of the beneficiaries
interests. Default = all trusts are spendthrift and cannot be sold by beneficiary. But there are
many exceptions to this rule.
i. E.g., Your kids can go out and sell their remainder interest unless the creator of the
trusts says otherwise.
c. Major EXCEPTION to trust: INCOME INTERESTS ARE AUTOMATICALLY
INALIENABLE, unless the creator provides otherwise. (§7-1.5(a))
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 i. If you silent, then the income interest is not alienable.
ii. E.g., your husband cannot go sell his "income for life" interest in a trust
iii. Estate of Vought: you are permitted to make a remainder interest ‘inalienable’ if you
make specific provision in the trust.
iv. Flip side: his creditors CANNOT take it → BUT once he has the $$ in his own bank
account, the creditors can take it. E.g. Income to my son for life. Son receives $2K in
income each month. Creditors could get a lien on money and garnish it credit card
company cannot serve on the trustee.
d. Exception to the Exception: An income beneficiary can assign income over $10,000 per year
to certain relatives so long as the instrument doesn’t prohibit it. (§7-1.5(b))
i. Assignable to take advantage of any tax benefits. Better than just taking the income
and gifting
e. E.g., income to A and remainder to B  the remainder interest  you can restraint the
remainder person’s ability to alienate the remainder interest. But if you didn’t restraint it, the
remainder person may assign or transfer it.
f. Creditor can get the rest when the income beneficiary dies and the rest of the rest to remainder
ii. Creditors:
1. If there is no direction to accumulate income, income in excess of the support and
education needs of the income beneficiary is subject to creditors’ claims. (§7-3.4)
i. E.g., G creates a trust, income to A, remainder to X. The income is more than
enough to meet A’s support and educational needs. Creditors can get the excess.
ii. What is enough to live, etc. is a fact determination by the court.
iii. If the grantor said trustee has the accumulate income discretion  this provision is
de-triggered.
2. If the creator makes a trust for his own benefit: the creditors can reach the portion that is for
his benefit. (§7-3.1(a)) – deadbeats tries to avoid paying debts
i. For example, G creates an irrevocable trust, income to G for life, remainder to X. G’s
creditors can reach the income interest, but not remainder.
ii. This applies even if creator is acting in complete good faith
iii. If she creates a revocable  creditor can reach the whole trust.
iv. If she creates an irrevocable  creditor can reach the income interest.
3. The creditor CANNOT compel a trustee to pay him out of a spendthrift trust.
i. If there is no spendthrift restraint, trustee has knowledge that the beneficiary has
assigned his/her interest or trustee has been served w/process in a proceeding to reach
that interest, the trustee is liable to creditor if the trustee pays the beneficiary.
a. Creditor cannot force the trustee to exercise in favor of a beneficiary
b. Once trustee does, if a creditor has attached an interest to the trust, the
10% allowed under the CPLR transfers immediately to the creditor at the moment
of transfer to the beneficiary
ii. Hamilton v. Drogo  still good law. In Hamilton, creditor thought he could force
trustee to give beneficiary a distribution, but he couldn’t. Only after a discretionary
payment could the creditor attach his judgment.
iii. CPLR § 5205: Creditors can reach 10% of the income OVERALL.
a. This comes into play despite other provisions.
b. Even under the circumstances that the beneficiary needs supports.
iv. Remainder Interest Alienability
a. Matter of Vought: If the creator makes the trust remainder inalienable, it will be
inalienable.
b. Income interests are inalienable but can be made alienable. Remainder interests are generally
alienable but can be made inalienable. (§7-1.5(a) says “[t]he interests of a beneficiary of any
trust may be assigned or otherwise transferred ...”
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 a. Alienability = transferability: right to sell, transfer, assign, or donate an interest
b. 7-1.4(a) General rule: all trust interest are fully transferable and alienable (therefore
reachable by creditor)
i. 7-1.4(a)(1) Exception 1: Income interest are NOT alienable unless the grantor
expressly make them alienable
1. Makes all income interests spendthrift UNLESS the creator provides
otherwise, which means that the income beneficiary’s creditors cannot
reach the income interest (b/c it is inalienable)
a. Rationale: spendthrift nature of income interests + to permit a
testator to make a secure provision for the support and
maintenance of an improvident person for life – and to place it
beyond the reach of that person’s creditors.
2. New York refuse to allow beneficiaries of a trust to break the trust
a. If inalienable = not reachable by creditors (can’t be attached) =
cannot be transferred/sold/assigned
b. Creditor would be able to do is wait until the income is paid out
 then the creditor can go after the income beneficiary
ii. 7-1.4(a)(2) Exception 2: life insurance proceeds may remain in a trust with the
insurance company after the insured person dies – and typically the trust directs
payment of income to a beneficiary
c. 7-1.4(b)(1) Exception to the income interest exception under 7-1.4(a)(1): notwithstanding the
spendthrift character of income interests, an income beneficiary may assign any income
over $10k per year to a loved one (his spouse, parents, ancestors, brothers, sisters, uncles,
aunts, nephews, or nieces) BY a written and acknowledged instrument delivered to the
trustee along with an affidavit that the beneficiary has not received consideration for the
transfer
d. §7-1.5(d) INCOME INTEREST EXCEPTION/RULE: To the extent that an income
beneficiary of a trust is legally obligated to support others (spouse, children) – he may transfer
all or part of his income interest to them (spendthrift rule of over $10k doesn’t apply)
v. Hard to amend trusts. If you make a mistake in your trust you are stuck with it.
a. Matter of Finneman: lawyers are liable to beneficiaries of a will or trust for their estate
planning mistakes.
vi. 3 statutory provision that helps creditors
a. 7-3.4 - A creditor may reach any amount in excess of what is necessary to support and educate
the income beneficiary
i. What is necessary for support and education? ' Factual question
ii. Limits the part of the income interest that is unreachable to what is necessary for the
beneficiary's education and support
iii. Another statutory provision that strikes a balance b/w the right of creditors to get paid
and the right of testators to freely dispose of their property
iv. NOTE: if the trustee has discretion whether to pay income or not, a creditor may not
compel the trustee to exercise his discretion in favor of the debtor, but the creditor can
obtain a levy against any income the trustee in his discretion pays out to the debtor
(income beneficiary)
1. Meaning that if the trustee does exercise his discretion to give income to
that beneficiary - then the creditor's right to that money attaches and the
trustee can give that portion to the creditor rather than the beneficiary
v. Practical Tip: if making a Trust, and "income to A and any excess income of what is
necessary should be accumulated and added to the principal" = now creditor has no
grounds for that money (allowed for in statute)
vi. Ex: Assume you need 40k each year for support, and the trust is earning 200k per year
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 1. 160k is available for attachment by creditors
b. CPLR 5205 – a creditor can reach 10% of a beneficiary’s income interest, even if it is needed
for the beneficiary’s support and education
i. Paid directly to creditor, if creditor serves a copy of judgment upon the trustee
ii. Income beneficiary will only get 90% if she has creditors
c. Rule 7-3.1(a) – a creditor can levy against the entire interest a grantor has created in his own
favor
i. Idea: a person may not avoid his present or future creditors by placing his property in
trust for his own benefit – his interests in the trust are immediately and always available
to his creditors, even if he needs it for his own support
ii. Ex: if you create a trust in good faith (while you are completely solvent) – income to
myself for life, remainder to my children
1. Then 10 years later you incur debt  creditors can attach that income
interest
2. Thus for the rest of your life, creditors can attach your income interest
iii. Ex: Assume that the trust says income to my elderly aunt for the rest of her life, when she
dies, remainder to me  creditors can reach that reversion
d. To conclude, to protect income beneficiaries from the reach of their creditors – income interest
are spendthrift
i. The creditors have to wait until the trustee pays the income to the income beneficiary
before satisfying their claims
ii. Note: a fiduciary who embezzles money from the trtust cannot insulate herself simply
because she is also the income beneficiary of the trust.
b.

M. Termination of Trusts
i. Ordinarily, a trust terminates when person gets remainder BUT trust can end:
a. (1) Pursuant to Trust Instrument (its own Terms)
i. Ex: Testator creates a trust, ‘income to A for life, remainder to B’ – trust terminates
automatically upon A’s death.
b. (2) Its Purpose is Completed
i. Ex: Testator, whose child died of AIDS, creates a trust to be used exclusively for cure of
AIDS; if a cure for AIDS was found, trust terminates and it goes back to T’s estate
c. (3) Purpose is Frustrated (cannot be carried out anymore)
i. Ex: Testator makes a trust to pay her son’s rent in his apartment for the rest of his life;
son buys a house and moves out of apartment – trust terminates
d. (4) When trust money runs out
e. (5) When income beneficiary dies & remaindermen get paid
f. (6) According to Testator’s will
g. When all beneficiaries consent
i. §7-1.16 Revocation via Will
1. Differs from law of other jurisdictions by NOT letting beneficiaries get
together and make adjustments to trust without grantor’s consent
2. Also applies to irrevocable trust w/consent of beneficiary & grantor
3. To revoke trust, need BOTH consent of creator & all beneficiaries; must
be in writing & formally acknowledge & all must agree to revocation
a. Creator can revoke/amend all or part but not after he died
b. Excludes possible unborn beneficiaries (don’t need consent)
c. Minors & disabled cannot consent to revoke
d. If trust instrument was recorded, revocation/amendment must
also be recorded
4. When the grantor dies, the beneficiaries cannot consent to its termination.
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 ii. American Rule:* beneficiary of a trust cannot compel premature
modification/termination unless
1. All beneficiaries Consent AND
2. Premature termination will NOT defeat a material purpose of trust, such
as:
a. Postpone Beneficiary’s enjoyment
i. Clafin: court will terminate trust when there is no
material purpose. Simply forcing a person to wait
until they reach a certain age (maturity) IS a material
purpose. (in this case, the beneficiary wants to get all
of the amount in the trust and thus wanted to assert
the invalidity of the trust due to lack of purpose.
b. Spendthrift, discretionary, & support trusts (Indestructible)
c. Allow trustee to sprinkle income among beneficiaries &
invade principal for group of beneficiaries
N. Revocation of Trusts
1. Trust can be revoked ONLY while creator is still alive & ALL the beneficiaries provide written
consent. (§7-1.9)  applies to irrevocable trust only.
a. Irrevocable trust is the default. If you don’t say revocable, automatically irrevocable .
b. For irrevocable trust Grantor and beneficiary must both give written consent to revoke the
trust.
2. To revoke you need the consent of the creator and all beneficiaries
3. Unlike in other jurisdictions, in New York when the grantor of the trust has died, the beneficiaries
CANNOT consent to its termination If the creator is dead, you can’t amend or revoke unless there is
a frustration of purpose (difficult to prove – most courts just honor a T’s intent)!!!
4. Minor children CANNOT consent.
5. Unborn Children & Intestate Distributees DON’T have to consent.
i. [§7-1.9(b)] “A disposition in favor of heirs, next-of-kin, distributees or words of like
import DOES NOT create a beneficial interest.” b/c people are not “heir” if grantor is still
alive  thus their consent is Not needed to amend or revoke a trust.
ii. Lawful representative issue" creates a beneficial interest – MUST CONSENT
iii. [§7-1.9(c)] Attorney general may consent on behalf of the charitable reminder men.
6. For revocable trusts it shall be in writing and executed by person authorized to revoke trust and
shall be acknowledged or witnessed.
7. Exceptions:
a. If the trust is not getting the tax benefits you wanted (usually done without the consent of
beneficiaries).
8. HYPO 1: I create a trust, income to my child for life, remainder to X - and I retain the right to revoke
it - Does my child or X have standing to stop me from revoking the trust?
a. No - they have no standing.
9. HYPO 2: G, a widow, died, survived by her 55-year-old daughter, A; her 52 year old son, B; A’s 25
year odl child, X, and B’s 22 year old child, Y. G’s will devised the residue of her estate in trust,
without a spendthrift restraint. Whose consent is necessary to terminate G’s trust in each of the
following?
a. Income to A for life, remainder in principal to X? G, A, X
b. Income to A for life, remainder in principal to X if X survives A? G, A, X; A contingent interest is
still a beneficial interest?
c. Income to A for life, remainder in principal to A’s children?
i. If A's children are unborns ' don't have to get their consent (unborns are not persons, thus
don't need their consent)
ii. Assume A has 2 children, ages 21 and 22
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 1. Consent required: G, A, and A's 2 children
iii. Assume A has 2 minor children
1. If there are living children under the age of 18 ' can't legally get their consent - thus
cannot revoke the trust
2. BUT if the change being proposed benefits them - the court will appoint a guardian -
they'll talk it out - and the guardian can consent
Problems
3.G created an irrevocable trust to pay income to his wife for life, remainder to his children in equal shares. The
trust had no other terms. G had three children, all adults when he made the trust. Assume no noteworthy
changes in circumstances. Can G get together with his wife and their children to revoke the trust?
Yes.
4.T made a testamentary trust to pay income to her husband for life, remainder to their children in equal shares.
The trust had no other terms. They had three children, all adults when T died. Assume no noteworthy change
in circumstances. Can the husband and children get together to revoke the trust?
No, because creator dies
5.G created an irrevocable trust to pay income to his wife for life, remainder to his children in equal shares. The
trust had no other terms. He had three children, two of whom are still minors. Assume no noteworthy changes
in circumstances. Can G get together with his wife and their children to revoke the trust?
No, minor cannot written consent , but if the change being proposed to benefit them – the court will appoint a
guardian  to get the guardian’s consent.
6.G created an irrevocable trust to pay income to his wife for life, remainder to his children, and if his children
predecease him, remainder to his heirs, which he defined as intestate distributees. The trust had no other terms.
Assume no noteworthy changes in circumstances. G had three children, all adults when he made the trust. Each
of G’s children has minor children. Can G get together with his wife and their children to revoke the trust?
Yes, heir or intestate distributes have no beneficiary interest in trust. 7-1.9(c)

K. Modification of a TrustUnanticipated circumstances.

a. Deviations from a trust often happen in Two ways:
1. Distributive deviations (Wolcott), where, for example, the income is no longer enough to
support the income beneficiary.
i. Wolcott: Husband left residue of estate in trust – income to wife for life and
remainder to surviving issue. The trustee had discretionary power and wanted to
invade the principal to give to T’s widow because she needed more money because
of her advanced age and illness.
a. Held: The children had consented and the court allowed the principal to be
invaded because the needs exceeded the amount left for her in the trust. It
was never the T’s intention to make her suffer or struggle.
b. This is covered in 7-1.6 → invasion of principal.
2. Administrative deviations (Pulitzer) – should you follow the testator’s directive not to
sell the newspaper even if it bankrupts the estate?
a. Pulitzer: A trust was funded with shares of stock in a newspaper company. Shares of
the stock fell so low that the trust beneficiaries wanted to sell the stock even though the
trust said “never to sell.”
i. Held: The court allowed the sale because otherwise the trust beneficiaries would
be hurt.
ii. THUS…if circumstances change in NY…the court can deviate from the terms
of the trust. BUT this is not so easy. A court will not allow a trust to be
changed without the consent of the grantor of the trust. The trust is supposed to
be administered in the way the grantor said…but if it is not possible because of
the change in circumstances…the court can step in and modify.

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L. Invasion of Trusts – 7-1.6 is triggered by emergence
1. §7-1.6 Generally: Grantor can specify that a trustee can invade the principal of the trust ((If a person has a
right to income from the trust and is living in poor circumstances…the trustee can invade the principal for
their benefit.))
i. E.g., I direct the trustee to pay income to my partner for life, and the trustee can invade
principal for my partner in his discretion.
ii. Rule on the trust that was created before June 1, 1966 – §7-1.6(a)
a. RULE: if an income beneficiary needs additional money for support or education, the
court may order the trustee to invade the principal for him, but only if:
i. 1) The court concludes that the creator would have intended it
1. Was the trust made to “support” the income beneficiary?
2. Does the trust prohibit invasion?
ii. 2) The creator’s purpose cannot be carried out without the invasion
iii. 3) (A) he income beneficiary also has an indefeasible interest in principal, OR
(B) the remainder-men and other income beneficiaries (who must be adult and
competent) all consent
iii. Rule on the trust created after June 1, 1966 - court has broader latitude for the trusts (unless
creator overrode it in his will or trust) – court has more discretion here – §7-1.6(b)
a. 1) the court concludes that the creator would have intended it
i. Was the trust made to “support” the income beneficiary?
ii. Does the trust prohibit invasion?
b. 2) the creator’s purpose cannot be carried out without the invasion
c. 3) (A) income beneficiary need not be entitled to principal, and (B) the
remaindermen need not consent, the court must hold a hearing at which all persons
interested in the trust can be heard.
i. Must give notice to anyone “beneficially interested” by formal citation
1) Doctrine of ‘Invasion of Principal’ – bypasses need for grantor’s consent and court can invade
principal for an income beneficiary’s support & education if insufficiently provided for
i. Grantor can specify that a trustee can invade principal of a trust BUT if trust instrument is
silent, trustee can still invade principal for income beneficiary’s ‘support or education’ if
court is satisfied that the creator would have wanted the invasion & purpose cannot be
accomplished in any other way court can order it.
a. §7-1.6(c) Limits: if income beneficiary is eventually entitled to principal, the amount
of the court-ordered invasion will be deducted from his share, without interest
i. i.e: income to A until the age of 30, then principal outright to A and B= the
amount of the court-ordered invasion will be deducted from A’s share, without
interest.
b. §7-1.6(d) Court cannot allow invasion of principal IF it would jeopardize charitable
deduction
c. §7-1.6(e) Court cannot invade a Supplemental Needs Trusts (7-1.12(b)(2))
Problem
7.G validly executed a trust in 1967 to pay income to her husband for life, remainder to their children. The
trust had no other terms. Many years later, the husband was impoverished and the trust income was
insufficient for his upkeep. Can the trustee invade the principal for his benefit? Would your answer be
the same if the children objected to the invasion?
Yes, after 1966, there is no requirement of getting consent from the beneficiary. Even if the children
objected.
If there is other provision, then 7-1.6(b) here is de-triggered.
8.G validly executed a trust in 1957 to pay income to his wife for life, remainder to their children.
The trust had no other terms. Many years later, the wife was impoverished and the trust income was
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 insufficient for her upkeep. Can the trustee invade the principal for her benefit? If so, under what
conditions
It is before 1966. Thus must get children’s consent because he is not entitled to the principal. 7-
1.6(a)

2. Supplemental Needs Trusts Est. for Persons with Severe & Chronic or Persistent Disabilities (7-1.12)
1) Used when a potential beneficiary is disabled and often the person’s basic necessities are being paid
by the govt., BUT want to give him more than necessary.
2) NY public policy encourage Supplemental Needs Trusts for disabled and retarded persons.
3) A trust created for chronically & severely disabled beneficiary that supplements governmental
benefits rather than supplanting them
 This is a trust that can be used for a person with a disability WITHOUT jeopardizing
that person’s ability to qualify for state and federal funds (Want to take care of a person
BUT don’t want them to be off the list from receiving government funds).  Trust
money can only be used for things that is NOT covered by the government money, for
luxuries.
 Must conform with criteria: (i) supplements what child receives from government, (ii)
trustee prohibited from using money to impair government benefits, (iii) beneficiary
doesn’t have power to assign/distribute from trust, (iv) if inter vivos trust, creator of
trust is person other than beneficiary/beneficiary’s spouse, (v) requirements if trust is
established with disabled person’s own funds
 If the proper party does not execute, acknowledge and fund a Supplemental Needs Trust
as this section requires, there is no Supplemental Needs Trust.
4) 2 Types of Supplemental Trusts
i. Created with funds of someone OTHER than disabled person or his/her spouse; 3
types:
a. Purely Discretionary: tells trustee that he can give money from principal
b. Escher: trusts that don’t give pure discretion, but instruct trustee not to pay out
money that is covered by government, but rather use funds for disabled
person’s luxuries
c. Statutory Supplement Needs Trust
ii. Established with the disabled person’s OWN funds (i.e. he wins a medical malpractice
lawsuit, etc) Pay-back Trust
a. Allow the trust even if use the disable person’s own money. but must be pay
back the rest if she received the medical care when she is alive before the
residue get the rest.
b. (5)(v) refers to §366 of social service law’s conditions
i. Disabled person must be under 65, but can create before 65 but
continue to exist beyond 65. Adding money after 65 will forfeiture the
trust.
ii. Trust must be created by parent, grandparent, guardian or court (not
sister or brother) (physical disable person can create its own)
iii. Upon disabled person’s death, government is repaid for amount that
disabled received as benefits (medicaid costs) before the other
remaindermen gets the rest. (Medicaid is for poor and medicare is for
everyone beyond 65)
c. Supplemental Needs Trust is a departure from the rules governing available
resources, a bargain struck with the state. It allows the beneficiary to remain
liable for Medicaid for his entire life, a benefit that comes with the cost of
repaying the state at death.
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 d. NY: When a person is injured and the proceeds are used to fund a
Supplemental Needs Trust, the state can deduct its lien for medical services
before the corpus is funded.
e. Ex: for personal injury action that causes the disability or inheritance
i. you can still use the funds to pay for things not provided by the gov’t.
but
ii. when you die, the govt funds have to be paid back.
5) What You Can Do with the Trust: CANNOT INVADE PRINCIPAL (govt benefits)
1. Parent can give money to a trustee to provide their child with anything not covered by
government funds, and at the child’s death the trust corpus can pass to their other children,
to charity or to anyone else they choose.
2. Trustee has complete and absolute discretion to use the income or the principal of the trust
for the benefit of the disabled or mentally retarded person.
3. A testator may create the trust for his spouse or anyone else, but if the supplemental-needs
trust is a lifetime trust, its creator must be someone other than the beneficiary or the
beneficiary’s spouse.
4. The trustee is required to shepherd the assets carefully, check for available government
funds before spending trust moneys for the beneficiary, and consider the long-range need of
the beneficiary, or the court will surcharge the trustee for its failure to do so.
6) Alienability by Beneficiary absolute no!!
1. The beneficiary cannot assign or encumber anything! The beneficiary cannot get any
money out of this trust UNLESS the trustee exercises his discretion.
2. Neither principal nor income shall be deemed available for the beneficiary. In addition,
giving money outright to the beneficiary would disqualify them.
7) Trust Fail: If you fail under ANY of the provisions, then the trust is NO LONGER going to be
considered a supplemental needs trust and is going to be construed as a common law supplemental
needs trust
a. Exception: (b)(2); invation of principal under § 7-1.6 does not apply to the this section to
forfeiture the beneficiary’s benefit from government benefits or assistance.
8) A court can reform a trust created before the enactment of this statute if
a. the trust instrument shows an intent to supplement, not to supplant government benefits
b. the beneficiary has no power to assign trust assets
c. the trust prohibits the trustee from spending money for items covered by government
benefits
d. the beneficiary is under a severe and chronic disability.

TRUSTS
CHARITABLE TRUSTS

Charitable Trusts
1. difference
a. rule of antiperpetuity does not apply here
b. no need to specify the beneficiary (AG can enforce it)
c. cy pres doctrine applies to charitable trust (which is sort of different to amend the private trust)
2. Disposition of Property for Charitable Purposes [8-1.1]
a. Court will direct that disposition be made to best accomplish grantor’s intent (will give money to
charity that most closely related to what grantor wanted]

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 b. NY uses cy pres  ‘as close as possible’ to testator’s ‘general’ charitable intent BUT doesn’t
apply if testator only has a specific charitable intent (only there is a general charitable intent
does the cy pres applies)
i. Only the trustee or the person with custody of the property has standing to initiate the
proceeding. A charity hoping for the cy pres ruling does not have standing to bring the cy
pres proceeding. But the charity may have standing to intervene.
ii. The Surrogate’s Court has jurisdiction over charitable trusts only when the disposition was
made by will.
iii. The court can apply cy pres doctrine to testamentary gifts and lifetime trusts.
3. Differences in Treatment of Charitable Trusts
a. Charitable Purposes: relief of property, advancement of education/religion, purposes beneficial to
community
b. Tax Treatment: charitable trusts qualify for charitable deduction [tax exemptions]
c. Enforcement: charitable trusts are enforced by Attorney General (so can have unidentified
beneficiaries)
i. Whereas private trusts are enforceable by beneficiaries and must be identified
d. Reformation: can be reformed by cy-pres doctrine (court asks would testator prefer that the gift fail
or that court decide to give to a charity as close as possible to original intent of testator)
 Private trusts cannot be reformed
 In NY, court ONLY applies cy-pres if testator had ‘general charitable intent’ NOT
if there was a specific charitable intent
4. Cy Pres – “As Near As”
a. If fulfilling the purpose of the trust becomes impossible (e.g., a cure is found, the charity goes out
of business, or there is not enough or too much money), then the trust will not fail, but the court
will allocate the trust to another charity that approximates the designated purpose.
i. Thatcher case (where trust was setup to help settlers going west through St. Louis, the court
used the money to help poor people in St. Louis) with Buck (court refused to apply cy pres
to a large trust designed for the poor of Marin County, because it was inefficient but not
“impracticable”).
1. If the articulated purposes of the trust have not become impossible,
impracticable, or illegal, but the income or principal exceeds that
which is necessary for their accomplishments, the cy-pres power may
be applied as to the excess.
ii. Estate of Buck: testator had a specific charitable intent for poor people in Marin county and
court determined that county would get the amount the stock increased to/generated income.
The amount becomes larger, you cannot use that because it is used for specific purpose 
spend on this county only  like in NY
iii. Nurse case: Man left trust money for women nurses at a specific hospital—however, at that
time, only women were nurses. Court applied cy pres to this and allowed it to go to male
nurses as well.
iv. Matter of Wilson, where the testator left money for scholarships only for boys. Court had
two choices, (1) remove state actor or (2) apply trust to both boys and girls. The court chose
to remove the state actor.
a. Facts: Wilson, in his will, devised the residue of his estate to the top 5 highest
“male” students who graduate from Canastota High School, as may be certified by
the Superintendent of Schools for Canastota Central School District.
i. The Court of Appeals affirmed Wilson’s Surrogate Court’s decision which
struck out the clause requiring the district’s certification (candidates were
permitted to apply directly to the trustee and therefore avoid involving the
school district). Since the school district was removed, the state was not
involved. (rejected cy pres approach)
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 ii. Professor believes the court decision is right. Either to remove state action or
to remove gender discrimination.
iii. One court use cy pres to remove the school board (remove state actor but
allow the discrimination) and another use cy pres to open to boy and girls 
CA decided to use the former (just means scholarship for boy only)
b. Key: If T had a general intent (i.e., donating money to a hospital but not specifying the wing or
the disease to benefit from the money) then the court could have put the money to a room in the
hospital. Application of cy pres doctrine. (looking for the general intent, if there it is, then the cy
pres doctrine can be applied)
c. NY requires that the creator had a general charitable intent to apply cy pres.
i. Syracuse University case (where a member of Syracuse Medical College’s faculty gave a
gift to the medical school, which was then taken over by the State University, the court held
that the creator’s attachment to SMC was a specific charitable intent not general-- Court
stated testator’s specific intent was for Syracuse Medical School NOT the university gift
cannot be reformed).  cy-pres was not applied because testator had a specific
charitable intent
d. Cy Pres is ONLY available if creator is DEAD or T is alive but consents to change.

CY PRES ANALYSIS:
1. Has the charitable purpose become:
- i) Unlawful, OR
- ii) Impossible or impractical to carry out that purpose, OR
- iii) Becomes wasteful to apply all of the property to the designated purpose, AND
2. T's Intent Was: 
- i) Specific charitable intent  NO Cy Pres
- ii) General charitable intent  YES apply Cy Pres!

FUTURE INTERESTS
EPTL § 6-4.2: Definition of a Future Estate
Limited to commence in possession at a future time, either without the intervention of a precedent estate, or on the
determination, by lapse of time or otherwise, of a precedent estate created at the same time.

Future Interests Future Interests

In the Grantor In Someone Else
1—Reversion 1— Remainder
2—Possibility of Reverter—When the life estate terminates 2— Contingent remainder—(aka Executory
automatically, within a period of time because of the occurrence interest in places other than NY)
of a specified event (contingent upon a limitation—might be the
period of time!)
e.g. key words are “as long as,” “while,” or “until.”
3—Right of reacquisition—If a condition subsequent occurs…it
is going to go back to the grantor.
e.g. key words are “but if,” “on condition that,” or “provided
that.”

Kinds of Future Estates

1) Future interests left in the Creator (Grantor)

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 A. Reversion: Created out of a simultaneous creation of an estate of less than what the creator owns
AND some portion of estate left in the creator – something other than a possibility of reverter or
right of reacquisition. (§6-4.4) (not say for as long as or say but if  reversion)
i. E.g., “I give my house to my wife for life”—This creates a life estate & reversion
back; “Income to X for as long as he is in law school”
ii. E.g., Settlor S conveys his house to his daughter D for life. S created a life estate for
D  S has a reversionary interest
iii. E.g., Settlor S conveys his house to his brother B for life, remainder at his death back
to S. S created a life estate for D  S has a reversionary interest
B. Possibility of Reverter: Created out of a simultaneous creation of an estate that will end
automatically upon some event or limitation. (§6-4.5) “Fee on Limitation”
i. Interpretation: Possibility of reverter is what the grantor has kept when the part that is
given away is done with words that indicate the endurance of interest.
ii. Examples that create reverter: “For as Long as,” “Until,” “While,” “During such time
as.”
a. E.g. I give you this house for so long as you are in law school. —This states that
your interest will terminate as soon as this event occurs/condition is met.
C. Right of reacquisition: Created when another estate is created that will end on a condition
subsequent. (§6-4.6)
i. “But if,” “On condition that”, “If (only if condition follows the if), But if
ii. Examples:
 I give this to the city, but if they use it for serving alcohol, I get it back.
 I give this house to my daughter, if she is not divorced.
 Example that create right of “but if,” “upon breach of condition,” “upon condition
that,” “provided that.”
 Note: Difference between possibility of reverter and right of
reacquisitionIn both cases, when the donee stops using it for a
specific purpose, the donor will get it back. The reason we
characterize Right of reacquisition and possibility of reverter
separately is b/c different legal affects attach to these two things.
A,B,C shall not violate the perpetuity rule!!! Otherwise, it deemed that the grantor never give his right up.

2) Estates in favor of a person other than the creator (Remainders) Future Interests Created by Grantor in
Third Parties
A. Remainder  created in favor of a person other than grantor, created simultaneously as present
interest and goes into effect at natural termination of previous estate
 e.g., Income to Mary and remainder at Mary’s death to her to Mary’s children
 A to life, remainder to his kids
 Types of Remainders:
1. Vested Remainder
2. Contingent Remainder
3. Executory Interest
1. Vested Remainders: these are vested immediately upon creation of the future estate
E.g. I give the interest to X and remainder to Y.
i. Indefeasibly Vested §6-4.7  vested right when creation
a. Definition: There is no condition on the grantee taking the interest.
No condition, such as survivorship, is read in when none are
provided. In no way to destroy.
i.e. If I give you $10K now, it vests in you right now, but some
interests don’t do that…

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 b. i.e., “Income to A for life and remainder to B.” I haven’t said that B
has to survive, stop smoking. B is going to get it. If B is dead, then
B’s estate will get it. It is indefeasibly vested.
c. When a remainderman dies, the interest goes to her estate.
d. This is why a remainder interest without any limitation or condition
is certain to become an estate in possession—even if the
remainderman dies, it will become an estate in possession of her
estate.
ii. Vested subject to complete defeasance §6-4.9 subject to condition
subsequent/limitation (future interest is vested but if there is condition
listed being satisfied  the interest divested)
a. Definition: The grantee only takes subject to a condition
subsequent or to a limitation—and the estate can divest even after
vesting.
b. Two types: condition subsequent and limitation
i. Condition subsequent: the grantor has a possibility of
reverter.
1. “But if,” “on condition that.”
2. E.g., Settlor S creates a trust to pay income to
his daughter D for life, remainder to D’s
child G, but if G shall have failed out of
college, remainder to Habitat for Humanity.
ii. Limitation: the grantor has a right of reacquisition.
1. “For so long as,” “Until”
iii. Vested subject to open §6-4.8
a. Definition: A grantee’s share is certain but can be diminished if
there are additions to an open class—e.g., “to my children,” where
the creator can have more children.
i. There are always lurking contingent remainders (of the
unborn children) where there an interest vested subject to
open.
ii. If you are born after the class gift is designated (i.e. to my
sons and daughters, the after-born will still share).
a. E.g., “Income to my husband and remainder to my
children.” This sounds like a vested interest b/c there
are no conditions of college, etc..., however, it is
subject to an open interest b/c the class could
expand. She could have more children.
2. Contingent Remainder (remainders subject to a condition precedent) §6-4.10
a. Definition: The grantee only takes subject to a condition precedent, and so
the interest does NOT vest.  Non-Vested Contingent Interest (above are
vested contingent interest)
b. A future estate subject to a condition precedent is an estate created in favor
of one or more unborn or unascertained persons or in favor of one or more
presently ascertainable persons upon the occurrence of an uncertain event.
i. An estate created in favor of 1+ unborn or unascertained persons, or
ii. An estate created in favor of 1+ presently ascertainable persons upon
occurrence of an uncertain event.
iii. Most common: survivorship or age contingency
Income to my husband and remainder to my children,
subject to my children finishing college
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 3. Executory Interest: Not called an executory interest in NY, it is included in the term
“Contingent Remainder Interest” (look at contingent remainder)
B. Examples
1. Grantor G put $500,000 in a validly executed trust that directed the trustee to pay income to X
for life, and at X’s death to pay the corpus back to G.
 X has interest income in a trust (a life interest), it’s inalienable. 6-4.1 (estate in possession)
 G has a reversionary interest under 6-4.4. This is not a possibility of reverter or a right to
reacquisition b/c there are no conditions. (e.g., “For as long as” and “No condition
subsequent,” respectively) this is the actual reversion.
 Note: It would be a possibility of reverter if he said: “To X, for as such period as he shall
be alive.”
 It would be a right of reacquisition if he said “to X, but if X shall die then it comes back to
me.”
2. G transferred real property to X for life.
 X  X life estate (estate in possession)
 G  Right of Reversion §6-4.4
3. G transferred real property to X for life, and at X’s death, remainder to Y.
 X  Life estate.
 Y  Indefeasibly vested remainder §6-4.7. Even if Y dies before X, it will still go to Y’s
estate. If you don’t say that person doesn’t have to survive, then he does not. They do not
read conditions in, they must be explicitly stated.
4. G transferred real property to X for life, and at X’s death, remainder to Y if Y survived X.
 X  Life estate.
 Y  Contingent remainder Interest subject to a condition precedent (complete defeasance)
 G  Reversionary Interest. If B doesn’t get it, it will revert to G. A reversion interest is
always valid under the rule of perpetuities. (if Y not survive the X)
5. G transferred real property to X for life, and at X’s death, remainder to X’s children. X had no
children at the time of the transfer.
 X  Life estate.
 X’s Unborn Children  Contingent remainder interest subject to a condition precedent (that
is, a condition of being born)
 G  Right of Reversion
 Subject to open  must have at least one is certain (6-4.10 (in favor of one or more unborn
or unascertained person)
6. G transferred real property to A for life, remainder to A’s children. A has children.
 A  Life estate.
 Children  Vested remainder interest subject to open. No contingencies exist. If you
don’t state a condition, you don’t have one. What if they don’t survive? It will go to A’s
children’s estate.
 Unborn Children Contingent remainder interest subject to a condition precedent. Their
interest becomes vested once they are born.
 G has NO reversion.
7. G transferred real property to X for life, remainder to X’s children who reach the age of 21. At
the time of transfer, X had no children who have reached 21.
 X  Life estate.
 X’s children (that haven’t reached 21 or unborn): Contingent remainder interests subject to
TWO conditions precedent.
o 1st - MUST be born.
o 2nd - MUST reach the age of 21.
 If A had children who reached 21  Vested remainder interest subject to open. There could
be more kids who reach 21.
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  G  Reversion if NONE of the conditions are met.
8. G transferred real property to X for life, remainder to X’s children who reach the age of 21. At
the time of the transfer, X had a child who had reached 21.
 X  Life estate.
 X’s children who have reached 21  Vested remainder interest subject to open (there can be
more children who will reach 21).
 Unborn Children & Children Who Have Not Reached 21  Contingent remainder interests
subject to TWO conditions precedent. (1st – must be born, 2nd – must reach 21).
 G  No reversion here because we know that there are children who are 21! - Vested!
9. In his will, T devised real property to W for life, remainder to T’s daughter, D, but if D had
failed out of law school, remainder to T's niece, N.
 W  Life estate.
 D  Vested remainder subject to complete defeasance. There is a condition subsequent
because of the “but if.”
 N  Contingent remainder interest subject to a condition precedent (the contingency is
that D has to fail out of law school)
 G has no reversion.
10. In his will, T devised real property to W for life, remainder to T’s daughter, D, but if D had
failed out of law school, remainder to T's niece. Assume that D predeceased T after having
procured a law degree.
 Same as above but now the D gets indefeasibly vested remainder. The only ground for
divestiture was if D failed out of law school. Here, D can no longer do that because she is has
a degree.
11. G gave real property to A for life, remainder to B but if C should return to town, remainder to
C.
 A  Life estate.
 B  Vested remainder subject to complete defeasance. If C returns to town B will lose
the property.
 C  Contingent remainder subject to a condition precedent. – This is the classic
common law executory interest – (vests only when C comes back into town).
12. G gave his real property to the city for so long as it is used for a park. (fee on limitation)
 This is a classic statement for a period of time. If at the end of duration, it passes back to
the grantor he has a possibility of reverter. §6-4.5 (terminated automatically within a
period of time defined by the occurrence of a specified event by the grantor)
13. G gives property to A and A'S issue for so long as they do not serve alcohol there.
 G  Possibility of Reverter because of the language of duration of time.
14. G deeds his property to his son, S, but if S stopped working as an investment banker, G would
get the real property back. §6-4.6 (a right of reaquisition is the future estate left in the creator or
in his successors in interest upon the simultaneous creation of an estate on a condition
subsequent.
 “But if” is language of condition subsequent. Grantor has right to reacquisition.
15. G gives his property to A and A’s issue, but if they serve alcohol there, G would get the real
property back.
 Right of reacquisition because it follows a condition subsequent.
C. More Examples:
1. G puts property in trust, income to A, then at A’s death corpus back to G.  A has life or present
interest that is inalienable. G has a reversionary interest.
2. G gives property to A for life.-  A has a life estate. G has a reversion. Reversion doesn't have
to be articulated. If you haven’t givaway 100% of the estate, then what is left is the reversion.
3. G gives property to A for life, then remainder to B  A has life estate. B has indefeasibly
vested remainder. If B’s dead, his estate gets it.
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 4. G gives property to A for life, then to B if B survives A  A has life estate. B has contingent
remainder interest subject to a condition precedent. G has right to reverter. This is always valid
under the rule of perpetuities.
5. G gives property to A for life, remainder to A’s children. A has no children at the time of
transfer.  G has life estate. A's unborn children have a contingent remainder interest
subject to a condition precedent (that is, a condition of being born). G has reversion? Or
possibility of reverter
6. G gives property to A for life, remainder to A’s children. A has children  A has life estate.
Born children have vested remainder interest subject to open. Unborn children have contingent
remainder interest subject to a condition precedent.

RULES AGAINST PERPETUITIES

RULES AGAINST PERPETUTIES--VESTING

A. Vesting Rule/Common law rule
1) § 9-1.1(b)Vesting Rule (common law): No estate is valid unless it (1) must vest, (2) if at all, not later than
21 years after (3) any life in being at the creation of the estate.
a. Rationale: decedent is allowed to retain control over property for no greater then 21 years
b. Rule usually applies to the following: contingent remainders, executory interests, and class gifts
(even if vested remainders).
c. Stated in a different way Any interest is VOID right from the start is there is any possibility,
however remote, that the interest may vest more than 21 years after some life in being at
creation of interest
i. If there is no way which an interest can be vested with 21 years after person’s death
(person alive at creation of interest) could vest – interest is void
ii. If it’s possible that interest could vest more than 21 years after all the lives in being
have died, that interest is invalid
2) Vesting Rule Analysis
a. Determine whether the interest is contingent or vested? If YES, there is a contingent interest,
RAP applies. If NO, there is no need to apply the rule.
b. Vested interests: “Vested” means the estate is certain to become an estate in possession at some
point. The vested interest can be a present or a future interest.
i. A testamentary trust interest or any interest under a will does not vest in anyone until the
testator dies
ii. No requirement that the interest must finally actually vest (if at all)
a. Ex: Income to Tom, Dick, Harry, Sarah or Mary. If the income interest never
vests in anyone, then it would revert to the grantor – OK
b. To X for life, remainder to Y. (X for life is vested present interest, Y is vested
future interest)
c. No estate in Property shall be valid unless it must vest, if at all,
i. Not later than ’21 years’
o An interest is void if there is any possibility that interest may vest more than 21
years after death of living in being.
o Ask: is it possible that interest could vest (i.e. contingency could occur) More than
21 years after death of ‘lives in being?
ii. After 1 or more Lives In Being at creation of the estate & any period of gestation
involved
o Lives in being that are useful = the parent of the class whose interest you're
analyzing, the people who can produce remaindermen

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 o Measuring Life: person in being when future interest is created who enables you to
prove interest will vest/fail during that person’s life, death or within 21 years after
that person’s death
o Person must be alive when interest is created but don’t need to be given
beneficial interest in property [identifiable]
o Perpetuities Period Begins: validity of interests is determined at the time the
interests are created (taking into account facts then existing)
o Wills – date of death (testamentary test)
o Revocable trusts – date trust becomes irrevocable [at creator’s death]
o Irrevocable trusts – date trust is created
o Beneficiary: must be alive/in gestation at time of transfer (either at time of creation
or death) OR within 21 years after that
o Look at people who are actually alive at the creation of the instrument and
ask whether it’s possible if they could die, and then 21 years could pass
before contingency could attach
o Lives in beings include the shall include a child conceived before the creation of the
estate but born thereafter.
iii. Interest must Vest, ‘if at all’:
a. Must Vest = must be certain that interest becomes an estate in possession at
some point (but don’t need actual possession). Interest becomes ‘vested’ when (i)
it becomes a present possessory estate, (ii) a vested future interest (becomes
indefeasibly vested remainder OR vested remainder, subject to total divestment.
i. Ex: to A for Life, Remainder to B (remainder interest vests in B)
ii. Income to W for life, then income to D for life, remainder to GD or her
estate (remainder to GD is vested)
b. If At All = interest doesn’t have to vest w/in perpetuities period in order to be
valid. Many contingent remainders never vest because condition precedent isn’t
satisfied. Interest must be certain before end of perpetuities period to (i) vest or
(ii) fail to vest
i. Ex: Income to W, remainder to S if he survives W, or if not remainder to
D
ii. Standard if NOT ‘will this interest vest’, but just that if it does vest, it’ll
vest within 21 years of lives in being.
iv. Interests that are Exempt from the Rule
a. Charitable Trusts - May last forever.
b. Vested Interests – A vested remainder in an individual is NOT subject to the rule.
HOWEVER…vested remainders in a class are subject to the rule so long as the
class remains open.
c. Reversionary Interests – Reversions, possibilities of reverter, and rights of entry
are all vested in interest and are not subject to the RAP.
v. Consequences of Violating Rule → An interest that violates the rule is void and
stricken. However, all other interests created in the instrument of transfer that are valid
under the Rule are given effect.
3) RAP Checklist
a. Step 1: Look to see if there is a contingent interest (is it contingent or an immedietly vested
interest?)? pg. 632
i. Condition on Survivorship
o Income to X, remainder to Y if she’s then alive (condition: Y survives X)
ii. Condition on reaching certain age
o Income to X, remainder to such of X”s kids who reach 25
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 o 2 contingencies – (i) X’s kids have to reach 25 & (ii) unborns have
contingencies of being born & reaching 25
iii. Condition on birth of children/grandchildren (an unascertained class)
o Income to X, remainder to X’s grandkids (when X dies can we know who
are the grandkids – conditional on being born as X’s child’s children)
iv. Condition on certain event
o Income to X, remainder to X’s kids that earn a college degree (condition:
getting the diploma + must be X’s kids)
b. Step 2: Is it possible that the interest could vest (contingency could occur), more than 21 years
after the death of the ‘lives in being’? [All or Nothing Rule] – professor’s approach
i. Need initial certainty
ii. If something can vest later than 21 years after the death of the “lives in being”, it’s too
remote  invalid.
iii. So Who should you think of when determining lives in being?
a. Think about parents of the class whose interest you're analyzing. The
generation above which you are analyzing.
b. !!! people who were actually alive at time interest is created
c. When do you figure the lives in being?  At Testator’s death for
testamentary.
d. If it is a lifetime trust, the interest is created when the trust is made (or
if revocable, when it becomes irrevocable)
c. Apply NY Rules & Rule of Convenience
a. In addition to the above codified common law rule in 9-1.1(b), we also have two other
rules:
1) Suspension of alienation rule – secondary rule…have to satisfy both of the
rules OR your interest won’t be valid.
2) Rule against unreasonable accumulations – can satisfy this test by knowing the
common law rule – If you know that rule…you’ll know that this interest
violates the RAP as well.
b. In order for the interests to be valid, MUST satisfy all rules!

B. Reduction of Age Contingency [§9-1.2] NY (must be invalid to trigger, see problem 3)

 In NY, if interest ‘fails’ (invalid) because of an age contingency, the law will reduce the age
requirement to 21. This will save an interest which would otherwise be invalid under the vesting
rule BUT only if the age is the only condition making interest invalid.
 Ex: Income to X, then income to Y, then remainder to Y’s kids who reach 30
o Under common law = remainder to Y’s kids is invalid
o In NY = remainder is saved under age reduction

C. Rules of Construction [9-1.3] NY

a. Validity Presumption – shall be presumed that creator intended estate to be valid
b. Unborn Widow Rule – where estate would be (except for this paragraph) invalid, because of
possibility that person to whom it’s given/limited may be a person not in being at time of estate
creation and such person is referred to in instrument creating such estate as the spouse of another w/o
id, it shall be presumed that such reference is to a person in being on the effective date of instrument
 Where an estate would be invalid because person was not alive at time of
creation  presumed she was in being
 Only happens when someone makes a trust and then marries someone who wasn’t
born at time of trust (someone really young)
c. Contingency Presumption- when duration/vesting of an estate is contingent upon probate of will,
appointment of fiduciary, location of distribute, payment of debts, sale of assets, settlement of estate,
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 determination of questions relating to estate, or occurrence of any specified contingency, it shall be
presumed that creator of such estate intended such contingency to occur within 21 years from
effective date of instrument creating such estate
 When T specifies a contingency assume it was intended to be w/in 21 years
 Ex: as soon as the business is sold (presumed it will occur within 21 years)
 Ex. 2: “as soon as my will is probated, I want the executor to give my estate ½ to
D & ½ to S”
o Could take more than 21 years to probate a will! So assume within 21 years
d. Fertile Octogenarian Rule- where validity of disposition depends on ability of a person to have a kid
in the future, it shall be presumed that a male can have a child from 14 & over, and a woman can
have a child from 12 to 55 (55 and older  conclusively cannot have baby by biologically, genetic or
by adoption)
 In case of a living person, can give evidence to establish whether he/she is able to
have kids at the time in question (ex: had a vasectomy) – rebuttable presumption
 When validity depends on ability of person to have a child in the future, possibility
that that person can adopt shall be disregarded
 Possibility of adoption is disregard

D. Rules of Convenience [Class Closing Rule] NY – artificially close the class

a. We have to look at the possibility of closing a class artificially. Closing a class happens at the earlier
of two events: (1) the natural closing of the class, or (2) the artificial closing brought about by the
application of the rule of convenience.
a. A class closes when a class member becomes entitled to distribution of a share
(artificial premature closing of class). In determining whether a non-vested
property interest is valid/invalid, facts existing at creation of interest are to be
taken into account
b. 3 Prongs:
i. First prong of rule: Use Only if a group/class description indicates that ALL persons who
fit description (whenever they’re born) were intended to share in the gift – keep class open
until all members who fit in the class can get a share
 Hypo: T writes a will in which she create a trust for her children. Children born
after the execution of the will are entitled to share.
 T drafted will in 1990, left estate to kids and grandkids in equal shares, in 1992
she had another kid, in 2004 her oldest has a grandkid. when she dies all are
entitled to share keep the class open so they all can share
ii. Second prog of rule: You can close the class artificially/prematurely at the point when a
distribution CAN be made (when money is ready to be paid out)
 Hypo: T drafted a will in 1990, leaving her estate in to her children and
grandchildren in equal shares. In 1992 she had another child and in 2004 her
eldest child presented her with a grandchild. When she died yesterday, all her
children and her grandchild share her estate, but after-born children are out
(born after the testator’s death) because the money was ready to be paid out—it
was a will, and the testator died. (genetic children are excluded)
iii. Third prong of Rule: When they conflict, Rule #2 prevails
 Don’t want a devise of real property just hanging around while waiting to see
who may take
 Class closing rule saves from perpetuities failure
iv. In sum  keep the class open – but when money is ready to be distributed – close the class
artificially. And those in the class then become the lives in being – and they’ll vest or not
within their own lifetime  no perpetuities problem (no need for age contingency reduction
rule)
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 v. Ex1: G devised real property “to A for life, then to such of A’s children as live to age 25.”
By the time of G’s death, A is dead and A’s eldest child had reached 25. A also had 2
other kids, ages 15 and 17.
o The class (of A’s children) can be artificially closed b/c one of A’s kids has
met the contingency of reaching age 25, and A is dead  thus the money can
be distributed
o The 25 year old can get the money now (testamentary gift to those who reach
age 25)
 Gift is in the form of an outright bequest (1/3 of G’s estate)
 The kids (15 and 17) also get a shot to reach age 25
o When they reach age 25 – they each get 1/3 of G’s estate
o If one does not reach age 25 – then the other 2 will share that 1/3 of the estate
 It’s the after-born children who don’t share (obviously, A would have to be alive
in order to have more kids)
vi. Ex2: Devise of real property to A for life, then to such of A’s children as reach age 25. A is
alive and A’s eldest child had reached 25 at the creation of the trust. Valid?
i. No – the remainder interest is invalid
ii. The class remains open b/c A is still alive and the rule of convenience
only operates when the distributions can be made
iii. Here – it can’t b/c A is still alive
iv. In NY  the age-contingency reduction rule would save it
E. Key: Questions to Ask with respect to the anti-perpetuate rule
1) Is there a contingent interest?
Examples of contingent interests:
i. Surviving (e.g., An Interest conditioned on survivorship (e.g., Income to X, remainder to Y if
she's then alive. This is valid b/c Y's contingency is that Y must survive X)
ii. Certain Age: Reaching a Certain Age (e.g., income to X, remainder to such of X's children
who reach the age of 25 --There are 2 contingencies: 1. to be born, and to reach the age of
25).
iii. Unascertained Class: An Interest In favor of an Unascertained Class (e.g., Income to X,
remainder to X's grandchildren -- In order to take a share of the remainder, one must be born
to a child of X.)
iv. An Uncertain Event: An interest conditioned on An Uncertain Event(e.g., Income to X,
remainder to X's children who earn a college diploma --There are two contingencies: 1. must
be born to X, and 2. must graduate from college)
2) If Yes to the first question (you have a contingent interest),  ask whether it is possible to take more than
21 years after the “lived in being’s death to vest the interest?
a. Identify the lived in being
i. [Look at the people who are then alive when the trust is created…could they all die AND
more than 21 years has passed and STILL the contingency has not occurred?? – If more
than 21 years have passed after the contingency is reached…then the interest is invalid.]
b. If the answer is that it may take more than 21 years to vest the interest, then the interest is not
valid under common law rule; if the answer is no, then it is valid.
c. This is an All or nothing Rule-- Meaning: If there is a possibility that anyone in that class could
vest 21 years after the contingency…then that whole interest (class or individual) is going to be
invalid. The rest of the trust will be valid. Only the invalid portion will be struck.
3) If the answer to the second question is yes, then it is not valid under common law. We have to look for
exceptions such as age reduction rule, doctrine of convenience rule to make the interest valid.
F. Examples
1. T makes a will, giving property to his children for life, remainder to his grandchildren.
 Testamentary  when be executed  when T dies
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  The bequest to the children for life is good. It vests in them upon creation of the trust.
 The contingency for the remaindermen is to be a grandchild of the testator. That means
being born to one of the testator’s children.
 T’s child is the “lives in being” when T dies.
 The trust is created when the testator dies, and that’s when you measure validity for
perpetuities purposes.
 The lives in being are T’s children. It’s a closed class because the testator is dead and can’t
have more children.
 Perpetuities question: Could contingency occur more than 21 years after death of T’s
children (the lives in being)? No. Grandchildren necessarily must be born within the lives
of T’s children. It’ll vest in the grandchildren when they’re born, during the children’s
lifetimes.
2. Creator makes a trust (lifetime or testamentary) to A for life, then to B for life, then to such of B's children
as reach the age of 21.
 A’s interest for life vests immediately upon its creation, so its valid.
 There is no contingency for B, because his interest also vests immediately upon its creation.
 Contingency for remaindermen, B’s children – must be born, and must reach age of 21.
 Measure perpetuities period from when make trust, or when creator dies.
 Lives in being is B. Closed class.
 Perpetuities question: Could contingency occur more than 21 years after death of B (the
lives in being)? No. B’s kids will vest when they reach 21, which can happen only within
21 years of B’s death.
3. Creator makes a trust (lifetime or testamentary) to A for life, then to B for life, then to such of B's children
as reach 24.
 Here, contingency can occur more than 21 years after death of B – they could occur 4 years
too late! B could have a baby today and die tomorrow, and his baby would reach 24 almost
24 years after his death. Remainder invalid under common law, but NY age contingency
reduction rule would save this gift and reduce age to 21 years old.
4. Grantor makes an irrevocable lifetime trust, income to grantor's children for their lives, remainder to
grantor's grandchildren.
 Income to grantor’s presently living children vests immediately on creation of trust, so its
ok.
 Income to grantor’s afterborn children, if at all, vests immediately at their births, so their
interest is contingent on being born. But, interest is valid because children’s births have to
occur during grantor’s lifetime.
 Remainder to grantor’s grandkids – contingency is grantor having kids, then his kids also
having kids – grandchildren must be born.
 Perpetuities question – could grandchildren be born more than 21 years after death of
grantor’s children who were alive when trust was created, the lives in being? YES. The
grantor could have another child after making trust. Then lives in being could all die, and
the afterborn could give birth to grandchild of grantor more than 21 years later.
 The remainder interest is invalid, and therefore the trust will pay income to the children for
their lives, then revert to the grantor. Could that reversion violate the rule? No. Reversions
vest upon creation and never violate the rule.
5. The testator makes a bequest to such of A's children as reach the age of 30; A is dead at the testator's death.
 Contingency – A’s children need to be born, need to reach age of 30.
 Perpetuities period starts to run at testator’s death.
 Who’s the lives in being? A is dead, so it cannot be A. All of A’s children are alive and are
themselves the lives in being.

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  Could contingencies occur more than 21 years after testator dies? All of A’s children will
either reach 30 (or fail to) during their own lifetimes!
6. The testator makes a bequest to such of A's children as reach the age of 30; A is alive at the testator's death
and one of his children has reached 30.
 Contingency – A’s children have to be born and reach the age of 30.
 Could contingency occur more than 21 years after death of A? Initially that seems
problematic, because of the possibility that A could have more children. However, one of
A’s children has reached 30, so the distribution is ready to be made and the class can close
under the rule of convenience.
 All of A’s children living at T’s death are therefore lives in being, and they’ll reach 30, if at
all, during their own lifetimes.
7. The testator makes a testamentary trust, income to B for life, remainder to A's children who reach 30. B is
dead at the testator's death and one of A's children has reached 30.
 Income to B for life is valid, but he is dead.
 Contingencies for A’s children are that they are born and reach 30. But, because B’s dead
and 1 child is already 30, class closes.
 Remainder to A’s children who reach 30 vests immediately on testator’s death. They are
their own lives in being and will reach 30 or not in their own lifetimes.
8. The testator makes a bequest to such of A's children as shall reach 30. At the testator's death, A is alive
and none of A's children has reached 30.
 Ok, here the class cannot close because distribution isn’t ready to be paid.
 Contingencies – A’s children need to be born and reach 30. A is the life in being. Can
contingency occur after 21 years of death of A? Yes. Not valid under common law. But
saved by NY’s contingency reduction rule.
9. Testamentary trust, income to A for life, then to such of A’s children as reach 25. A is alive and A’s eldest
child had reached 25 at the creation of the trust.
 The remainder is invalid in common law. The class remains open, because the rule of
convenience operates only when the distribution can be made. Here, it can’t, because A
is still alive. But, saved by NY’s contingency reduction rule.
10. The testator makes a testamentary trust, income to the testator's brother for life, remainder to the
testator's nieces who reach the age of 21.
 Income to testator’s brother is valid because it is vested immediately
 Remainder interest: It depends. The contingencies for nieces are to be born and to reach
21.
 What lives in being are useful to consider? The testator’s brothers and sisters who were
alive when he died.
o Is it possible that a niece could vest after all their deaths?
o What if the testator’s parents had a child after the testator’s death, and then all the
lives in being died?
o Then, what if the after-born sibling gave birth to a niece?
o She might vest (turn 21) more than 21 years after the death of the lives in being.
 What could save it?
o First, it’s valid if the testator’s parents were dead at his death. The testator’s brothers
and sisters would be a closed class, and a niece would reach 21 (or not) within 21
years of their deaths.
o Second, if the rule of convenience would permit closing the class. That would
happen if T’s named brother were dead at testator’s death and one of the nieces had
reached 21. In that case, any after-born nieces would be excluded and could not
share.

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 o Third, in New York, if the father were dead and the mother were over 55, the class
would be biologically closed under the fertile octogenarian rule (EPTL 9-1.3(e)).
11. The testator devises real property for his children for life, then for his grandchildren for life, then
remainder to the great-grandchildren's surviving issue.
 The life estate to the children is valid. It’s not contingent; it vests upon creation of the
interest.
 The life estate to the grandchildren: The contingency is to be born. The class of T’s children
is closed because the testator has died. All grandchildren will be born during the lives of
their parents, the closed class of testator’s children. The grandchildren’s life estate is
therefore valid.
o The remainder to the more remote issue: the contingency is to be born to a grandchild
of T. The useful lives in being are the grandchildren alive at testator’s death, which is
not a closed class. An after-born grandchild could give birth to a great-grandchild more
than 21 years after the death of lives in being. Just being able to imagine that is fatal.
The remainder is invalid.
12. In T’s will, she gave property to her children for life, remainder to her grandchildren.
 This is a testamentary trust, the interest is created when the testator dies
 Children’s interest is vested when T dies.
 Grandchildren’s interest is contingent on (1) being born to T’s children within the lives of the
children. The interest vest in the GC when they are born during the children’s lifetimes (no
genetic).
 Lived in being is determined when T’s death (also when the interest is created)  T’s children
13. In his will, T directed his executor to transfer $100,000 to the U.S. Trust Company as trustee, and directed
the trustee to pay all the income to X for life, then to Y for life, then to such of Y's children as should reach
the age of 18.
 This is testamentary trust. The interest is created when T dies.
 X’s interest is good because it vests when T dies. Y’s interest is good because it is vest at the same
time too.
 Y’s children’s interest is contingent – remainder interest subject to condition precedent. Must be
both born to Y within Y’s lifetime and reach 18.
 Y is the lived in being.
 It is impossible to take more than 21 years for Y will meet both requirements. (at most 18 years
after born within the lifetime of Y)  Valid
a. In the alternative, assume that T made this trust during his lifetime, and that otherwise the
terms were the same
 Income to X and Y are still valid because these are vested when the trust is created.
 Remainder to Y’s children who reach 18 is still valid. As long as Children is born to Y, it takes
less than 21 years after Y’s death to reach 18.
14. In his will, T directed his executor to transfer $100,000 to the U.S. Trust Company as trustee, and directed
the trustee to pay all the income to X for life, then to Y for life, then to such of Y's children as should reach
the age of 30.
 Income interest to X is valid, and income interest to Y is valid
 The remainder to Y’s children who reach 30 might vest too remotely and is therefore invalid under
common law
i. How could it vest too remotely? Assume that Y had a child after the creation of the trust
and then immediately died.
ii. Assume further that everyone else in the world alive on that date died
iii. That child would reach 30 more than 21 years after the death of the lives in being
 Under New York’s EPTL 9-1.2, we’d reduce the age to 21 to save it  valid again.

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15. During his lifetime, Grantor transferred $100,000 to an irrevocable trust, directing the trustee to pay
income to Grantor's children for their lives, remainder to grantor's grandchildren.
 This is lifetime trust and children’s interest vest when the trust is created.
 Remainderman’s interest is contingent on (born to G’s children within the children’s lifetime)
 All the children who are alive when the trust was created are lives in being.
 It’s useful to think of the lives in being as the Grantor’s children who were alive when the
trust was created.
 The Grantor could have another child later. Then the lives in being could all die, and the
after-born could give birth to a grandchild of Grantor more than 21 years later.
 The entire remainder interest is invalid. After the death of the income beneficiaries, the trust will
revert to the grantor
 (Note: Reversionary interests are valid under the Rule against Perpetuities.)
16. In his will, T bequeathed $500,000 to be shared among such of X's children as reached the age of 25. At
T’s death, X was dead, and his children were 25 and 27.
 All of X’s children’s interests vest immediately upon T’s death (All of X’s children’s interests vest
immediately upon T’s death. Also, the children are closed  valid (convenience)
 In the alternative, assume that at T’s death, X was dead and his children were 17 and 15.
i. The class of X’s children is biologically closed, because X is dead. It’s valid.
ii. Those children are the lives in being. They will vest or not within their own lives. It’s
valid.
 In the alternative, assume that at T’s death, X was dead and his children were 1 and 3.
i. Because X is dead, the class of his children is closed, Those children are the lives in being.
They will vest or not within their own lives. It’s valid.
17. G devised property in trust, directing the trustee to pay the net income therefrom “to A for life, then to A’s
children for the life of the survivor, and upon the death of A’s last surviving child, to pay the corpus of the
trust to A’s grandchildren.” A predeceased G, G was survived by A’s two children C1 and C2 (pg. 941)
 All the interests are valid
 Income interest to A: The income to A doesn’t vest, but that failure to vest happens immediately
upon the creation of the trust, that is, at G’s death.(no anti-perpetuity rule involves here)
 Income to A’s children: the contingency is to be born, but because A is dead at the testator’s death,
C1 and C2 are both vested at the creation of the trust and no child of A’s can vest thereafter
because A has dead.
 Remainder to A’s grandchildren: The contingency is to be born, which necessarily has to occur
within the lives of A’s children, C1 and C2, who are lives in being.
18. G devised real property to such of A’s children as live to age 25.” At G’s death, A (who was then alive) had
three living children, all of whom were under 25
 This is contingent interest which contingent on (1) being born to A and (2) reaching 25.
 A is the useful life in being to consider, and you can throw in his 3 children if you like
(because they are alive when the trust is created (when G dies).
 Invalid, why? Pay attention that the beneficiary’s category is not closed yet.
i. A could have another child (after-born child) after the creation of the trust and
immediately die, along with his first 3 children.
ii. The after-born child would reach 25 more than 21 years after lives in being
 Therefore, it is invalid under common law rule, but will be saved by EPTL 9-1.2 the age-
contingency reduction rule.
 Alternative3 (problem 3 on pg. 942): suppose that A’s eldest child had reached 25 by the time of
G’s death: not trust but directly payout.
i. Valid. The class closed (by rule of convenience) at G’s death.
 Alternative 4 : real property “to A for life, then to such of A’s children as live to age 25.” A
survived G. By the time of G’s death, A’s eldest child had reach 25.
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 i. This money is not ready to pay now unless A’s death  not close the class. The class is still
open, and A has a kid after G’s death and A an eldest child all dies  takes more than 21
years to reach 25  remainder is invalid. (not naturally close or could be artificially
closed)
ii. If this were a New York Analysis, the age-contingency reduction rule would save it (EPTL
9-1.2)
19. In his will, T bequeathed $500,000 to be shared among such of X's children as reached the age of 25. At
T’s death, X was alive and one of his children had reached the age of 25.
 Remainder interest is valid.
 The contingence is that X’s children to be born and reach 25.
 Initially it is problematic because X is still alive and the class is open
 However, it is ready to be distributed  artificialy close the class and ready to distribute  close
the class. (the distribution date of a straight bequest is the time of T’s death, but as to the date of
distribution of remainderman is
20. In his will, T directed his executor to transfer $500,000 to U.S. Trust Company as trustee, to pay income to
X for life, remainder to B's children who reached 25. X was dead at the testator's death and one of B's
children had reached 25
 Income to X’s life  vest immediately
 Remainderman’s interest is contingent  must born to B and reach 25.
 When T’s dies, one of B’s children had reach 25 and meet the condition, and no intervening
income interest, and thus the class is closed  it is ready to distribute  under convenience rule
doctrine artificially closed  it is valid  B’s after-born children, if any, don’t share.
21. In his will, T bequeathed $500,000 to be shared among such of X's children as reached the age of 25. At
T’s death, X was alive and none of X's children had reached 25 (straight bequest)
 X is alive when T dies
 X’s children’s interest is contingent  born to X and reach 25
 X’s children class is not close
 It is likely that X has a new child and then die together with all existing children  it is likely to
take more than 21 year to reach 25
 But in new York, the age-contingency reduction rule will save it.
22. In her will, T directed her executor to transfer $500,000 to U.S. Trust Company as trustee, to pay income
to X for life, then income to X's children for their lives, then remainder to A if living, or if not, to A’s issue
(testamentary trust) (assume X really young and children are babies)
 Income to X is valid as it vest immediately when T dies (creation of the trust)
 Income to X’s children is contingent, however, it is vest immediately when X’s children born to X
during X’s lifetime. (X is the life in being with respect to the determination of X’s Children)
 Remainder to A if living is subject to condition precedent (contingency for A to be alive at the
death of X’s last child  vest at all or not) (A is life in being when X’s last children death) vest
in her own lifetime at all or not.
 A’s issue is valid
i. Contingence: A has to die before he last of X’s Children. A is the live in being with respect
to determine A’s issue’s interest. Either vest upon death of A, or not.
23. (P937) G devised property “ to A for life, then to A’s children for their lives, and on the death of each of
them to the survivor or survivors of them for life, and on the death of the survivor of them, to B and her
heirs.” (To B and her Heirs means to B without any condition)
 To A for life  valid, no contingence
 To A’s children for their lives: it is valid because it is not contingent with the children that had been
born; or even if it is contingent (for those unborns), it vest during A’s life immediately born
 on the death of each of them to the survivor or survivors of them for life: paid until A’s last
children dies. Same as above
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  To B and Her heirs: valid because it is not contingent. (future interest vest without condition)
24. 2(a)(1) G devised real property “to A and her heirs so long as liquor is not sold and, if it is, to B.

25. 2(a)(2) G devised real property to A and her heirs on condition that no liquor be sold on the premises, but
if liquir’s being sold on the premises, the property is to go to B
 All interest are invalid. This is a condition subsequent rather than a fee on limitation. Niut the
vesting in A; s heirs and B’s estate could still happen to remotely
26. (b) G devised property in trust, directing the trustee to pay the net income therefrom “to A’s for life, then
to A’s children for the life of the survivor and upon the death of A’s last surviving child, to pay the corpus
of the trust to A’s grandchildren.” G was survived by A and A’s two children, X,Y.
 A’s children for the life of survivor  valid,
 To A’s grandchildren  contingent  invalid

27. Pg. 991

 17.12 invalid
 17.13 invalid
 17.14 invalid, all
 All above illustrate the too remote.

RULES AGAINST PERPETUTITES—POWERS OF APPOINTMENT

A. Powers of Appointment – give another person the power to decide who will get property later
a. Example: Income to my Partner, P, for life, then to her kids, then to her grandkids.
- Under an ordinary vesting perpetuities analysis=
o Income to P for life= valid b/c P is a life in being
o Then to her kids= valid b/c vests at P’s death
o Then to her grandkids= invalid b/c vests too remotely
o Remainder would go back to T
- If testamentary trust provides, income to P for life, remainder as she decides to appoint in will.
Assume in will P appoints to her kids for life, remainder to her grandkids=> good
o Ex. income to my D and in 2010 she can appoint the remainder among the grandmothers’ issue
b. If the power of appointment is invalid, the disposition takes effect as if the power had never been created
alternative or revert (for exam purpose, all are valid power)
c. If the POA is valid, some or all of the interest created may violate the rule against perpetuity.

B. Definitions
a. Donor – person who creates the power EPTL 10-2.2(a)
b. Donee – holder of the power EPTL 10-2.2(b)
c. Appointee – the person in whose favor the power of appointment is exercised. EPTL 10-2.2(c)
i. E.g. Income to my daughter for life, remainder as she appoints in her will. She appoints to
her children for life, remainder to their children. T = donor, daughter = donee; kids/grandkids
= appointees.
d. Appointive Property – property that’s appointed EPTL 10-2.2(d)
C. Validity of Power:
1) Power of appointment may be invalid because:
1. Power violates the rule – e.g. income to my daughter, income to her children, last child to survive can
appoint among issue (invalid power –RARE)
2. The appointment violates perpetuities.

D. Types of Powers
1. Identify the kind of power of appointment
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 a. Is it General or special?
i. General: one that can be exercised in favor of donee, his estate, his creditors, or the
creditors of his estate.
1. E.g. trust – income to son, remainder as he appoints in his will – can go to
himself, or his estate, etc.
2. Ex. Grandmother makes trust= income to S and remainder as S appoints in his
will (since no restrictions can exercise it in favor of any of the 4=> general)
3. Ex. W makes trust= income to H and he can w/draw 5% or $5,000 from
principal= general b/c in favor of himself
ii. Special: all others – not self, creditors or estate.
1. E.g. trust income to daughter, remainder as she appoints among her children 
only to children.
2. Ex. Grandfather creates a trust= income to D and remainder as she appoints
among her kids=> special b/c can’t take it herself or give to any of 4 above
3. Ex. H creates trust= income to W, remainder as she appoints to their issue and
can withdraw from principal anytime to provide luxuries for disabled brother
b. Power of appointment is exclusive OR non-exclusive
i. Exclusive: if it may be executed in favor of 1+ appointees to exclusion of others
ii. Non-Exclusive: if it must be exercised in favor of all appointees
c. Timing of Exercise of Power
1. Presently Exercisable Power – power that can be exercised “during the donee’s lifetime”
OR “during the lifetime or by his will” at any time after its creation. EPTL 10-3.3(b)
o Ex. 5% for 5000 power that H has=presently exercisable b/c can take it out
immediately
o Ex. Grandfather creates trust- income to D, remainder to grandkids, but D can
invade principal at any time presently exercisable
2. Testamentary Power – can ONLY be exercised by donee’s will
o Ex. H makes testamentary trust- income to W for life, remainder as she appoints in
her will
3. Postponed Power  can ONLY be exercised after a period of time OR an occurrence
OR non-occurrence of an event.
a. Income to my D and if sth happen she can appoint xxx.
2. For General and presently exercisable powers, time for perpetuities starts running at the time of the
exercise of the power of appointment.
a. No tacking
3. For all others: perpetuities starts running from the time of the creation of the power/date of Ts death.
a. Tacking – tack new trust onto old trust
i. G makes trust  income to daughter for life, remainder as D appoints by will. D appoints
in trust, income to her children for life, then to surviving issue  income to D for life,
income to D’s children, remainder to D’s issue.
b. Wait and See (only for non-general/presently exercisable)
i. RULE: if you have to measure the perpetuities period from the creation of the original
instrument (b/c the power of appt is NOT general and presently exercisable), you can
consider the facts that exist at the time of P’s exercise of her appt
1. And only powers that must be measured from the time of the creation of the
power, that is, all powers except presently exercisable general powers
2. Don’t have to guess as to who may be a life in being rather you can Look at who
is lives in being at the date of exercise.
3. It permits a look at the facts as they exist on the date the donee exercises the
power to determine the validity of the appointed interests under the remoteness-
of-vesting rule
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 4. Time which permissible period beings
o Where someone exercises a power of appointment permissible RAP period begins
 If general presently exercisable start perpetuities period at date of exercise of the power
(will= at DOD/ trust= when exercise) 10-8.1(a)(1)
 If any other power= start perpetuities period at date of creation of the power (tack the 2
trusts together) 10-8.1(a)(2)
v. RAP; facts to be considered  ‘Wait & See’
o In analysis can take into account facts and circumstances= wait and see
 If it’s a power that requires tacking=> you can pause at date of exercise and see who’s who
(if all were in being at creation of the trust it’s good)
o Is the power itself valid
 If power given to a named person=> always valid
 If not given to a named person=>
o If general presently exercisable power=> power must simply be acquired w/in
perpetuities period (w/in 21 yrs. of lives in being)
 If can exercise it in your own favor immediately=> treat it as your own property=>
starts when you transfer it
 Ex. Income to D and remainder as her eldest child appoints by will (general presently
exercisable)
 Valid
o If not a general presently exercisable power=> power is invalid if it could be
exercised more than 21 yrs. after lives in being
o Ex. Income to D, remainder as her eldest child surviving her, appoints by will
among her issue (special testamentary power)
 Invalid since she could be born after the original trust was made and she
can exercise it more than 21 yrs. after D dies
E. Overview:
e. Identify type of power:
i. Is it ‘general’ or ‘special’?
ii. Is it ‘presently exercisable’, ‘testamentary’ OR ‘postponed’?
f. 2 separate analysis of powers of appointment are necessary under the Rule Against Perpetuities
i. ‘power itself’ may be invalid because it violates RAP
ii. the ‘exercise of power’ (appointment) may be invalid because it violates RAP
F. Examples:
1. Grandmother makes a trust, income to son, remainder as son appoints in his will.
1. Son’s power is general, because he could exercise it in favor of his estate, his creditors or
his estate’s creditors.
2. Grandfather creates a trust, income to daughter, remainder as she appoints among her children.
2. It’s special, exclusive, presently exercisable.
3. Wife makes a testamentary trust, income to her husband, and he can withdraw 5% or $5,000 per year from
principal.
3. Husband’s power is general and presently exercisable because as soon as wife dies (that is,
as soon as the trust is created), husband can exercise his power.
4. Husband creates a trust, income to his wife, remainder in any proportions to their issue.
4. Special and presently exercisable
5. Husband makes a trust, income to his wife for life, remainder as she appoints in her will.
5. Testamentary and general
1. D made a will in which he gave his residuary estate, which amounted to approximately $3 million, to his
brother Bob as trustee with directions to pay income to D’s partner P for life, remainder as P appointed in her
will. P executed a will directing that Tom pay the corpus of D’s trust to the North Fork Bank as trustee, to pay

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 income to P’s children for their lives, remainder to P’s issue surviving at the death of all her children. D died
in 1990. P died yesterday.
6. This one is not a general power presently exercisable (it’s general testamentary), so measure
it from the date of D’s death
7. Tack  “Income to P, then income to P’s children for their lives, then remainder to P’s then
surviving issue.”
8. Although it looks prima facie problematic—because for the income interest to P’s children,
P could have a child born after D’s death, who could retain an inalienable interest too long,
and for the remainder interest, P’s after-born child could give birth to P’s issue too late,
violating vesting and SOA)—it might not.
Part (a): Assume that P’s three children were born respectively in 1985, 1991, and 1993, and that they all survived
her. Discuss the validity of all interests.
9. The wait-and-see rule allows you to look at the actual facts when P exercises. Her children
were not all alive when D created the trust.
10. Income to P (good), then income to her children (good for vesting, bad for suspension of
alienation).
11. then remainder to issue (bad for both, because of P’s after-born children, and the possibility
of P’s having more children).
Part (b): Suppose her children born in 1991 and 1993 tragically predeceased D?
12. All interests are valid. The one child remaining was a life in being, and all interests vest
and become alienable in time. That is, you’re allowed to take into account that there are no
(and will be no) after-born children.
2. Same facts as above, but what if D died in 1996? -- In part (a), where P’s children were born in 1985, 1991,
and 1993, all interests are valid.

D made a will in which she gave his residuary estate, which amounted to approximately $3 million, to her brother
Bob as trustee with directions to pay income to D’s partner P for life, remainder as P appointed in her will. P
executed a will directing that Bob pay the corpus of D’s trust to the Fiduciary Trust Company as trustee, to pay
income to P’s children for their lives, remainder to P’s issue surviving at the death of all her children. D died in
1990. P died yesterday.
First: whether it is gener al power presently exercisable? If it is the general presently exercisable power 
measured when P’s death. If not, measured when D’s death (creation of the power)
 No, it is Testimony general  determine when creation of the power  measured at D’s death (10-8.1(a)
(2))tack
a) Assume that P’s three children were triplets born in 1985, and that they all survived her. Discuss the validity of
all interests.
 All three are born in 1985 (power is not created (1990) therefore, they are all alive when T dies. Save the
remainder interest by wait and see (no after born children)
 Tack: income to P for life, then income to P’s children, remainder to P’s issue surviving at the death of all
her children.
 Income to P for life and income to P’s children are valid because vest immediately (children are alive when
D’s death)
 To determine the remainder, applying EPTL 10-8.3 wait and see rule at time P death. Whether she actual
has after-born. Without “wait and see”, P is the lives in being, if she has the after-born children who may
live for 40 years and all two
b) In the alternative, assume that P’s children were born respectively in 1984, 1986, and 1991, and that they all
survived her. Discuss the validity of all interests.
 There is an afterborn, it does invalidate the remainder. (1991 is after 1990 when D died)
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c) In the alternative, assume that P’s children were born respectively in 1988, 1989, and 1991, and that her third
child predeceased her leaving issue surviving her. Discuss the validity of all interests.
 Predeceased P so that P has no after-born children when he dies.  All interest are valid.

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