NYLE - Trusts, Wills and Estates

Wills: Construction problems: Competency of attesting witness- beneficiary: EPTL 3-3.2

A disposition to an attesting witness is void unless there are two other disinterested attesting witnesses who are available to testify. However, an interested witness remains a competent witness and may be called to testify as to the validity of the will. If the interested witness is also an intestate distributee, the witness is entitled to receive the lesser of his or her intestate share or the disposition made to him or her in the will.

Types of trusts: Revocable: EPTL 7-1.16, 7-1.17

If a trust provides that it is revocable, a grantor may amend or revoke the trust in a writing that is executed and acknowledged with the same formalities as the initial trust instrument (EPTL 7-1.17 [a]). The governing instrument can eliminate the need for formalities, but all revocations or modifications must be in writing. Additionally, the grantor may revoke or amend a lifetime trust in his or her will, provided that he or she specifically refers to the trust (EPTL 7-1.16).

Wills: Construction problems: Advancement: EPTL 2-1.5

Under the doctrine of advancement, a testator may satisfy part or all of a disposition or intestate share by making a lifetime gift to the beneficiary. The doctrine is limited to situations in which such gifts are accompanied by a writing, which must be executed contemporaneously with the gift and signed by the decedent, or acknowledged by the donee, stating that the donor intended the gift to be an advancement. The decedent must intend to substitute the gift for the donee's share of the estate.

Non-probate transfers: Retirement benefits: EPTL 13-3.2

No statute or laws governing the transfer of property by will, gift or intestacy may impair or defeat the rights of beneficiaries of pension, retirement, profit-sharing or other specified benefit plans. Thus, the right of a person entitled to receive money or other property pursuant to such a plan may not be defeated by a testamentary disposition. Rights under a retirement plan are however contractual rights and therefore limited by the provisions of the contract.

Wills: Revocation: Dependent relative revocation

"The doctrine of dependent relative revocation may be simply stated by saying that where the intention to revoke a will is conditional and where the condition is not fulfilled, the revocation is not effective" (Matter of Sharp, 68 AD3d 1182 [3d Dept 2009]). The doctrine is usually applied where the testator cancels a will with the intent to make a new testamentary disposition, and the new disposition is not made or fails for some reason.

Non-probate transfers: Lifetime Trusts

(see Trusts and Estates, V.A.)

Power of Attorney: GOL §§ 5-1501, 5-1501A, 5-1501B, 5-1505, 5-1511, 5-1513, 5-1514: Statutory and non-statutory forms

A Power of Attorney (POA) permits another person (an agent) to complete financial transactions on a principal's behalf. Section 5- 1501 of the General Obligations Law sets out the forms creating a durable and nondurable statutory short-form POA. A durable POA survives the principal's incapacity and a nondurable POA does not survive the principal's incapacity. The statutory short-form POA is durable unless the principal expressly states otherwise in the document (GOL § 5-1501A). To be recognized as a valid POA under the law, the POA must meet certain execution requirements and contain certain specific language, whether it is a statutory short-form or a non-statutory form (GOL § 5-1501B [1] [a]- [d]). The POA must be signed and dated by the principal (who must have capacity) and by the agent and their signatures must be acknowledged in same manner as required for the recording of a deed. The agent does not have to sign the POA at the same time as the principal. The specific language prescribed for a statutory short-form POA is set forth in GOL § 1513. In order for the principal to grant the agent various authorities (listed as "(A)" through "(O)" in the form), the principal must place his or her initials in a bracket preceding each specific authority. If the principal wishes to grant his or her agent authority over all of the matters enumerated in the form, the principal need only place the initials inside the bracket enumerated "(P)" and does not need to initial the other lines. Placing an "X" or other mark rather than the principal's initials is invalid and does not serve to grant to the agent any authority unless a principal lacks capacity for a standard signature and routinely signs his or her name with such a mark (Matter of Marriott, 86 AD3d 943 [4th Dept 2011]).

Non-probate transfers: Totten Trusts: EPTL 7-5.2

A Totten Trust (Estate of Totten, 179 NY 112 [1904]) is a bank account in the name of the decedent payable on his or her death to a named beneficiary. The creator of a Totten Trust may revoke or modify it during the creator's lifetime or by will. The trust must be described in the will as being in trust for a named beneficiary in a named financial institution. The will need not mention an intent to revoke or modify the trust, but must dispose of part or the whole of the trust account in order to effect a revocation or modification of the trust. The beneficiary has no vested right in the trust, only an expectancy that he or she might receive the trust in the future.

Wills: Codicils: EPTL 3-2.1

A codicil requires the same formalities as a will. If the codicil is not executed with the formalities of section 3-2.1, it is ineffective and the will remains as originally executed.

Trusts: Creation of lifetime trusts, including trust res, beneficiary, trustee, valid purposes and execution requirements: EPTL 3-3.7, 6-2.2, 7-1.1, 7-1.4, 7- 1.14, 7-1.15, 7-1.17, 7-1.18, 7-2.3

A grantor may create a trust of real or personal property for any lawful purpose (EPTL 7-1.4). A trust has three parties, its creator, the trustee and the beneficiary. A trust is not merged or invalid because a person, including but not limited to the creator of the trust, is or may become the sole trustee and the sole holder of a present beneficial interest therein, provided that one or more other persons hold a beneficial interest therein (EPTL 7-1.1). EPTL 7-1.14 provides that any person or entity may make a lifetime trust. The person or entity must intend to create a trust, and the trust must have at least one definite and ascertainable beneficiary who is not the trustee and a grantor who delivers the corpus to the trustee. Any kind of estate in property may be disposed of by lifetime trust (EPTL 7-1.15). Under section 7-1.17 (a), the provision setting forth the formal requirements for executing a trust, the trust must be: • In writing; • Executed by the creator of the trust and at least one trustee; and • Acknowledged like a real estate deed for recording or executed in the presence of two witnesses, who must then sign it. A trust is not valid until funded (EPTL 7-1.18), with the exception of life insurance, pension trusts, and pour-over trusts (EPTL 3- 3.7; Matter of Sackler, 145 Misc.2d 950 (Surrogate's Court, Nassau County 1989). In order to be sufficiently funded, the assets must be transferred through recording a deed or completing the registration of the stock certificate (EPTL 7-1.18). If the asset is not recordable or registrable, the grantor must assign the asset to the trust in writing (id.). The trustee holds legal title to trust property and co-trustees share legal title jointly with right of survivorship (EPTL 6-2.2 [e]). When a sole trustee dies, the trust property vests in a court, which can then appoint a successor trustee, unless the trust otherwise provides (EPTL 7-2.3).

Types of trusts: Irrevocable: EPTL 7-1.9, 7-1.16

A lifetime trust is irrevocable unless the trust instrument expressly provides that it is revocable (EPTL 7-1.16). Notwithstanding, an irrevocable trust may be revoked or amended pursuant to EPTL 7-1.9 (see Trusts and Estates, V.D.).

Will contests: EPTL 3-3.5: Standing to contest: SCPA 1410

A person has standing to contest probate of a will if probate would adversely affect his or her interests.

Wills: Construction problems: Renunciation: EPTL 2-1.11

A person who disclaims a gift (renounces interest in decedent's estate) is considered to have predeceased the decedent. In order for the disclaimer to be valid, it must be: • In writing, • Signed and acknowledged before a notary public, and • Accompanied by a separate affidavit stating that no consideration was received for the disclaimer by a person whose interest will be accelerated. A beneficiary must renounce a disposition within nine months of a transfer, and the disclaimer is irrevocable.

Types of trusts: Testamentary: EPTL 3-2.1

A testamentary trust is a trust created in a will. Consequently, a testamentary trust only becomes effective upon the death of the testator.

Types of trusts: Pour-over: EPTL 3-3.7

A testator may direct in his or her will that his assets be poured over into a lifetime trust. This pour-over trust need not be executed with the same formalities as a will and may be amendable or revocable, but it must be in existence before or be executed contemporaneously with the will. The trust must be in writing, signed by the creator and at least one trustee, and either acknowledged like a deed or signed by two witnesses.

Will contests: EPTL 3-3.5: No-contest clauses: EPTL 3-3.5 (b)

A testator may include in his or her will an "in terrorem" or no-contest clause, which prevents a disposition from taking effect if the will is contested by the beneficiary, even if the beneficiary has probable cause for the contest. Such a provision will be enforced, subject to certain exceptions, including that: • The beneficiary objects, based on probable cause, on the grounds of forgery or revocation by a later will; • A guardian contests on behalf of an infant beneficiary; • The beneficiary objects to the court's jurisdiction, refuses to join in the probate petition, or waives service of a citation; • The beneficiary provides information pertinent to the probate of the will; • The beneficiary conducts preliminary examinations under SCPA 1404 to evaluate the merits of his or her objections; or • Institutes, joins or acquiesces in a proceeding for the construction of any provision in the will.

Non-probate transfers: Inter vivos gifts

A valid inter vivos gift requires: • Intent on the part of the donor to make a present transfer; • Delivery of the gift, either actual or constructive, to the donee; and • Acceptance by the donee (Gruen v Gruen, 68 NY2d 48 [1986]). The proponent of a gift has the burden of proving each of these elements by clear and convincing evidence.

Wills: Revocation: By physical act or subsequent writing: EPTL 3-4.1

A will can be revoked by another will; a writing of the testator clearly indicating an intention to effect such revocation, executed with the formalities prescribed by statute for the execution and attestation of a will; or by a physical act such as: • Burning, • Tearing, • Cutting, • Canceling (writing across words), • Obliterating, or • Mutilating. The testator may destroy the will himself or herself or direct another person to do so in his or her presence and in the presence of two witnesses other than the person destroying the will. Whether a marking is sufficient to constitute revocation is a question of fact for the courts to decide. In addition, a will may be revoked or altered by a nuncupative or holographic declaration of revocation as set forth in EPTL 3-2.2. Revocation is effective only if intended by the testator. Revocation of a will also revokes the codicils to the revoked will.

Will contests: EPTL 3-3.5: Mistake

A will is entitled to probate even if the decedent was mistaken concerning extraneous facts which might otherwise have caused the decedent to make a different disposition, unless the mistake of fact was the product of undue influence (Matter of Young, 289 AD2d 725 [3d Dept 2001]). Where the mistake affects the decedent's testamentary intentions, however, the will may be denied probate (In re Forbes' Will, 14 NYS 460 [2d Dept 1891], affd 128 NY 640 [1891]). The objectant has the burden of proving mistake (see Young, 289 AD2d at 727).

Wills: Revocation: Partial revocation: EPTL 3-4.1

A will may be partially revoked by another will or a writing executed and attested with the formalities of a will. The statute does not allow for partial revocation of a will by a physical act.

Wills: Revocation: Revocation due to divorce: EPTL 5-1.4

All dispositions to a former spouse, including dispositions by will, by powers of appointment, by beneficiary designations for securities, life insurance, pension or retirement benefits, or by revocable trust, including a Totten Trust, are revoked if the spouses are judicially separated, divorced or if their marriage is annulled or declared void or dissolved on the ground of absence. Nominations of the former spouse to serve in any fiduciary or representative capacity are also revoked. The former spouse is treated as having predeceased the testator; thus, the disposition passes to the alternative beneficiaries.

Wills: Construction problems: Adopted children: EPTL 1-2.10; DRL 117

EPTL 1-2.10 defines "issue" as descendants and includes adopted children and their issue. Under DRL 117, adopted children are the issue of their adoptive parents. They are not the issue of their biological parents. Thus, as a general matter, an adopted-out child will not take in a class gift from a birth relative unless that child is "specifically named in a biological ancestor's will, or the gift is expressly made to issue including those adopted out of the family" (Matter of Best, 66 NY2d 151, 156 [1985], cert denied sub nom McCollum v Read, 475 US 1083 [1986]). An adopted-out child may, however, share in a class gift to "issue" of his or her biological family if the testator or grantor is his or her grandparent or a descendant of the grandparent (aunt, uncle, cousin, etc.) and the adoptive parent is a stepparent, a grandparent or a descendant of the grandparent (DRL 117).

Disqualification of parent, spouse: EPTL 4-1.4, 5-1.2

EPTL 4-1.4 disqualifies a parent from inheritance if he or she fails to support the child or abandons the child while the child is under the age of 21, whether or not the child dies before the age of 21. The Court of Appeals has defined abandonment as a "settled purpose to be rid of all parental obligations or to forego all parental rights" (Matter of Susan W., 34 NY2d 76, 80 [1974]). A parent may regain the right to inherit if he or she resumes the parental duties, including financial support, and continues fulfilling them until the death of the child (EPTL 4-1.4 [a] [1]). A spouse is disqualified from sharing in intestacy if, among other things, the marriage was void under the Domestic Relations Law, the parties were legally separated or divorced under a final decree, or the surviving spouse has abandoned or refused to support the deceased spouse and such abandonment or refusal to support continues through the time of death (EPTL 5-1.2 ).

Share of after-born or pretermitted child: EPTL 5-3.2

EPTL 5-3.2 provides that a child born after the execution of the testator's will shall succeed to a portion of the testator's estate if the after- born child was left unprovided for by any settlement or without any mention in the will. If the testator had no child living when he or she executed his or her last will, the after-born child succeeds to the portion of such testator's estate as would have passed to such child had the testator died intestate. If the testator had one or more children living when he or she executed his last will and no provision is made therein for any such child, an after-born child is not entitled to share in the testator's estate. If the testator had one or more children living when he or she executed his or her last will, and provision is made therein for one or more of such children, an after-born child is entitled to share in the testator's estate, as follows: • The portion of the testator's estate in which the after-born child may share is limited to the disposition made to children under the will; • The after-born child shall receive such share of the testator's estate as he or she would have received had the testator included all after-born children with the children upon whom benefits were conferred under the will, and given an equal share of the estate to each such child; • If the intention of the testator was to make a limited provision to be applied only to the testator's children living at the time the will was executed (for example, "I give each of my children $1,000 because they have provided me with little comfort"), the after-born child succeeds to the portion of such testator's estate as would have passed to such child had the testator died intestate.

Wills: Construction problems: Abatement: EPTL 13-1.3

Funeral expenses, debts, taxes and administration expenses retain priority over dispositions under a will and distributions in intestacy. Unless otherwise provided by a testator, if the assets of the testator's estate are insufficient to pay all obligations of the estate and distributions under the will, the interests in the estate will abate in the following order: • Distributive shares in property not disposed of by will, • Residuary dispositions, • General dispositions (EPTL 1-2.8), • Demonstrative dispositions (EPTL 1-2.3), • Specific dispositions (ratably) (EPTL 1-2.17), • Dispositions to the decedent's spouse that are eligible for the estate tax marital deduction. The testator may, however, provide for a different order of abatement.

Non-marital children: EPTL 4-1.2

Generally, a non-marital child has full inheritance rights from the mother and mother's family. A non-marital child inherits from his or her birth father only if paternity is established by one of the following four criteria: • An order of filiation declaring the person to be the child's father; • The mother and father acknowledged paternity under the Public Health Law; • The father files a witnessed and acknowledged affidavit of paternity with the Putative Father Registry; or • Paternity is established by clear and convincing evidence, which may include a DNA test, or if the father openly and notoriously acknowledged the child as his own. The rights of non-marital children extend to their issue as well.

Wills: Revocation: Revival of revoked wills: EPTL 3-4.6

If a testator executes a will that is revoked by a later will containing a revocation clause, the first will cannot be revived by the testator merely revoking the later will. A prior will or disposition may be revived by: • Executing a codicil that incorporates the provisions of the will by reference, • A writing executed with will formalities declaring the revival of the old will, or • Re-execution and re-attestation of the prior will in accordance with will formalities.

Amendment, revocation and termination: EPTL 7-1.9, 7-1.16, 7-1.17, 7-1.19, 7-2.2

If a trust is revocable (see EPTL 7.1.16, 7-1.17 [a]), the creator can revoke the trust without the consent of the beneficiaries by written notice of revocation delivered to at least one other trustee within a reasonable time if the person executing the revocation is not the sole trustee (EPTL 7-1.17 [b]). If a trust is irrevocable, the grantor must execute an instrument in writing acknowledged or proved in the manner required for the recording of a conveyance of real property, with the consent of all living beneficiaries, executed in like manner (EPTL 7-1.9). A trustee is not an interested person, and the consent of an unborn child is not needed to revoke or amend a trust (Matter of Peabody [Chase Manhattan BankpHoltzmann], 5 NY2d 541 [1959]). A court may terminate a trust, upon application by a trustee or beneficiary, if it finds that: • Continuation of the trust is economically impracticable, • The express terms of the disposing instrument do not prohibit its early termination, and • Such termination would not defeat the specified purpose of the trust and would be in the best interests of the beneficiaries (EPTL 7-1.19). When the purpose of a trust ceases, the trust terminates and the estate of the trustee also ceases (EPTL 7-2.2).

Types of trusts: Charitable, including cy pres: EPTL 8-1.1

In New York, a disposition for charitable purposes is valid despite the lack of a definite or ascertainable beneficiary. The state Attorney General represents beneficiaries of charitable trusts. A charitable trust will not fail for lack of a trustee. Rather, title will pass to the court with jurisdiction to appoint a trustee. A charitable trust may be reformed under the cy pres doctrine. In order to reform the charitable trust, a court must find the following three conditions: • The gift or trust is charitable in nature; • The language of the will or trust instrument indicates that the donor demonstrated a general, rather than specific, charitable intent; and • The particular purpose for which the gift or trust was created has failed, or has become impossible or impracticable to achieve.

Spouse's elective share and testamentary substitutes: EPTL 5-1.1-A, 5-1.2

In New York, a surviving spouse has the right to take $50,000 or one-third of the net estate, whichever is greater (EPTL 5-1.1-A). The net estate consists of: • Property in the decedent's name that could pass under a will (net probate assets), • Property that passes in intestacy, • Testamentary substitutes, and • Debts owed to decedent. Testamentary substitutes include: • Gifts causa mortis made before and after marriage; • Totten Trusts (EPTL 7-5.1 [d]), including bank accounts in testator's name in trust for another and payable-on-death securities; • Survivorship estates: including joint tenancies, tenancies by the entirety, joint bank accounts, and survivor bank accounts to the extent of decedent's contribution; • Employee pension, profit sharing, and deferred compensation plans (if the plan is a "qualified" plan under IRS 401 and payable to the surviving spouse, only one- half is considered a testamentary substitute); • Lifetime transfers in which decedent retained the power to revoke such disposition or a power to consume, invade or dispose of the principal, or name new beneficiaries, including annuities (see Estate of Zuppa, 48 AD3d 1036 [4th Dept. 2008]). • Property over which decedent retained a presently exercisable general power of appointment; and • Gifts made within one year of death but excluding any portion not subject to the federal gift tax pursuant to the annual exclusion. Life insurance contracts are not considered testamentary substitutes (id.). The one-third share is reduced by property received by intestacy, testamentary substitutes, and bequests under the will. The elective share is paid ratably, unless otherwise directed by the will, by the decedent's beneficiaries, such as intestate beneficiaries, beneficiaries under the will, and beneficiaries of testamentary substitutes. The surviving spouse must exercise the right of election within two years of the decedent's death, but a court may in its discretion extend this time period upon a showing of good cause. The right of election may be waived by an agreement that is written, signed, and acknowledged before a notary public. A surviving spouse is disqualified from sharing in a wrongful death recovery, intestacy or electing against the will under certain circumstances, including where there is a final judgment of divorce or separation, the surviving spouse abandoned the decedent and the abandonment continued until the decedent's death, or the surviving spouse failed or refused to support the decedent (EPTL 5-1.2).

Alienability of trust interests and spendthrift trust provisions, rights of creditors: EPTL 7-3.1, 7-1.5, 7-1.6, 7-3.4; CPLR 5201, 5205

In New York, income interests in a trust are not alienable and therefore beyond the reach of creditors (i.e., spendthrift protection), unless the grantor of the trust expressly makes them alienable in the trust instrument (EPTL 7-1.5). For example, if a trust directs income to A for life, remainder to B, A may not sell or assign his income interest, and A's creditors cannot reach the income, unless the grantor provides otherwise. Notwithstanding spendthrift protection, an income beneficiary may assign all or part of his income to a spouse or children he is legally obligated to support, or income over $10,000 per year to his heirs pursuant to an acknowledged document (EPTL 7-1.5 [b]). In addition, EPTL 7-1.6 provides that a court may in its discretion make an allowance from principal to any income beneficiary for the beneficiary's support and education. Remainder interests are freely alienable unless by specific provision in the trust, the grantor makes the trust remainder inalienable. In the example above, B can sell his remainder interest during his lifetime or bequeath it in his will, even if the remainder interest is contingent. Creditors of the creator and income beneficiaries have certain statutory rights. For example, a disposition in trust by a creator for his own benefit (a self-settled trust) is void against existing or subsequent creditors (EPTL 7-3.1). CPLR 5205 (d) allows creditors to reach 10% of the income from a trust, and pursuant to EPTL 7-3.4, unless a trust requires the accumulation of income, a creditor may levy against the income in excess of what is necessary for the income beneficiary's support and education.

Wills: Incorporation by reference

In New York, the doctrine of incorporation by reference is generally not recognized (Booth v Baptist Church of Christ of Poughkeepsie, 126 NY 215, 247-248 [1891]). In other words, a will may not incorporate by reference any document that was not signed and attested with the formalities of EPTL 3-2.1. Exceptions have been carved out via statutes, such as EPTL 3- 3.7. Under section 3-3.7, a testator may direct in his or her will that the assets be poured over into a lifetime trust. This pour-over trust need not be executed with the same formalities as a will, but must be in existence before or be executed contemporaneously with the will. The trust must be in writing, signed by the creator and at least one trustee, and either acknowledged like a deed or signed by two witnesses.

Non-probate transfers: Life insurance: EPTL 13-3.2

Life insurance assets ordinarily do not pass under a will or in intestacy, but rather by beneficiary designation. Thus, an insurance beneficiary's rights are not affected by laws governing the transfer of property by will or intestacy unless the insured fails to properly designate a beneficiary, no named beneficiary survives the insured, or the insured expressly designates his or her estate or personal representative(s) as beneficiary. Designation of a beneficiary must be done by a signed writing. The insurance carrier may also set forth the rules in its contract on how to designate a beneficiary and the carrier must agree to the designation of the beneficiary.

Intestate Succession: EPTL 4-1.1; Abandoned Property Law § 1215

Property not disposed of by will is distributed pursuant to EPTL 4-1.1. If the decedent is survived by: • Spouse and issue, $50,000 and one-half of the residue to the spouse and remainder to the issue by representation ([a] [1] (see Trusts, Wills and Estates, II.E.7); • A spouse and no issue, the whole to the spouse ([a] [2]); • Issue and no spouse, the whole to issue, by representation ([a][3]); • Parent(s) but no spouse or issue, the whole to the parent(s) ([a] [4]); • No spouse, issue or parent, the whole to the issue of parents(s) (by representation) ([a] [5]). If grandparents or their issue are the only survivors, one-half the estate goes to the paternal grandparents or their issue, by representation, and the other half to the maternal grandparents or their issue, by representation (EPTL 4-1.1 [a] [6]). For purposes of this distribution by representation, the issue of grandparents includes only children and grandchildren. Thus, by representation distribution ends at first cousins. If no children or grandchildren of the decedent's grandparents survive the decedent, the estate passes one-half to the great-grandchildren of the maternal grandparents, per capita, and one-half to the great grandchildren of the paternal grandparents, per capita (EPTL 4-1.1 [a] [7]). Per capita means in equal shares (EPTL 2-2.11). If the decedent is not survived by any of the above mentioned relatives, the estate escheats to the state (Abandoned Property Law § 1215).

Health Care Proxies: Public Health Law §§ 2980, 2981, 2982, 2985

Public Health Law § 2981 authorizes any competent adult to appoint a health care agent by a health care proxy that is signed and dated by the adult in the presence of two adult witnesses, who must also sign and who cannot be the appointed agent. The agent's authority commences upon a determination that the adult lacks capacity to make health care decisions. The agent's decisions must be consistent with the known wishes of the principal (i.e., by the adult having executed a living will or having expressed such beliefs) including religious and moral beliefs (Public Health Law § 2982). If the principal's wishes are not reasonably known or cannot reasonably be determined, the agent may act in accordance with the adult's best interests. However, if the adult's wishes regarding the administration of artificial nutrition and hydration are not reasonably known and cannot with reasonable diligence be ascertained, the agent shall not have any authority to make decisions regarding these measures. If the agent does not know the adult's wishes concerning life-sustaining treatments, they are not authorized to make any decisions regarding those measures. The proxy may be revoked by notifying the agent or a health care provider orally or in writing, any other act evidencing a specific intent, execution of a subsequent health care proxy, and divorce from the agent unless the principal specifies otherwise (Public Health Law § 2985).

Wills: Revocation: Proof of lost will, presumption of revocation: SCPA 1407

SCPA 1407 provides that a copy of a lost or destroyed will may be submitted for probate only if it is established that: • The will has not been revoked, • The will was properly executed, and • "All of the provisions of the will [can be] clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete" (Matter of DiSiena, 103 AD3d 1077 [3d Dept 2013]). When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator. A proponent of a lost/destroyed will has the burden of proof to show that the testator did not destroy the will with the intent to revoke it.

Wills: Construction problems: Gifts to classes, children and issue: EPTL 2-1.2, 2-1.3, 4-1.3

Section 2-1.2 provides that dispositions to issue will pass by representation if the instrument was created after August 31, 1992. Under by-representation disposition, issue of deceased issue take an equal share with the other survivors at their level. Prior to this date, dispositions to issue will pass per stirpes. Under a per stirpes disposition, the issue of deceased issue take their parent's share. For example, if property passes by representation to decedent's issue and he is survived by children A and B, and by grandchildren G-1 and G-2 from predeceased child C, and by grandchild G-3 from predeceased child D, then children A and B each get one-fourth of the estate, and the other half is divided evenly (one-sixth of the estate each) among grandchildren G-1, G-2 and G-3. Under a per stirpes distribution, grandchildren G-1 and G-2 would share one-fourth of the estate and grandchild G-3 alone would receive one-fourth of the estate. Section 2-1.3 provides that when a testator disposes of property in favor of a class described as his or her "issue," adopted, posthumous and non-marital children are entitled to share in the disposition. A genetic child may be included in any disposition to a class (EPTL 4-1.3; see Trusts and Estates, I.C.).

Wills: Execution requirements: EPTL 3-2.1, 3-2.2

Section 3-2.1 sets forth the formalities a testator must follow to execute a valid will. To be valid: • A will must be signed at the end by the testator or by a person on the testator's behalf in the presence of the testator and by his or her direction; • The testator must sign his or her name and declare to each of the attesting witnesses that the instrument he or she is signing or has signed is his or her will; • At least two attesting witnesses must sign the end of the will in the testator's presence. The testator may sign in the presence of the attesting witnesses, who see him sign, or the testator may acknowledge his signature to them; • Attesting witnesses must both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names within a 30-day period of each other. Under section 3-2.2, except in limited military circumstances, oral (nuncupative) wills and holographic (handwritten) wills are not valid in New York.

Child conceived after parent's death: EPTL 4-1.3

Section 4-1.3, enacted in 2014, provides rights to children conceived from the genetic material of a deceased individual. Under certain conditions, a child conceived using the genetic material of a deceased person is a distributee of the child's genetic parent and may be included in any disposition to a class described as "issue", "children", "descendants", "heirs", or any other term included in a will, trust, or other instrument created by the genetic parent. Those conditions include that the genetic parent must have created a written instrument within seven years of his or her death and said instrument must provide consent for the use of his or her genetic material. The child must be conceived no later than 24 months after the genetic parent's death or born no later than 33 months after the genetic parent's death.

Will contests: EPTL 3-3.5: Due execution: EPTL 3-2.1, 3-2.2

See Trusts and Estates II.A. for the execution requirements. The proponent of the will has the burden of proving due execution (see In re Goldin's Will, 90 NYS2d 601, 602-603 [Surrogate's Court, Erie County 1949]).

Non-probate transfers: Joint bank accounts: Banking Law §675

The deposit of funds in a bank account in the name of the depositor and another person and in form to be paid or delivered to either, or the survivor of them, creates prima facie evidence of intent to create a joint tenancy with the right of survivorship. This presumption can be rebutted by providing direct proof that no joint tenancy was intended or substantial circumstantial proof that the joint account had been opened for convenience only.

Power of Attorney: Termination

The power of attorney terminates when: • The principal dies; • The principal becomes incapacitated, if the power of attorney is not durable; • The principal revokes the power of attorney; • The principal revokes the agent's authority and there is no co-agent or successor agent; • The agent dies, becomes incapacitated or resigns and there is no co-agent or successor agent; • The purpose of the power of attorney is accomplished; or • A court order revokes the power of attorney (GOL § 5-1511 [1]). The power of attorney also terminates when the authority of the agent terminates, which can occur when: • The principal revokes the agent's authority; • The agent dies, becomes incapacitated or resigns; • The power of attorney terminates; or • The agent's marriage to the principal is terminated by divorce or annulment (GOL § 5-1511 [2]).

Rule Against Perpetuities: EPTL 9-1.1, 9-1.2, 9-1.3

The rule against perpetuities limits the ability of owners to control future disposition of their property. In New York, the rule against perpetuities, which applies to both real and personal property, but not charities, applies two rules in determining the validity of a disposition of property: (1) the suspension of the absolute power of alienation and (2) the remoteness of the vesting of the estate. Under the suspension of alienation rule, any estate in which the conveying instrument suspends the absolute power of alienation for longer than lives in being at the creation of the estate plus 21 years is deemed void (EPTL 9-1.1 [a] [2]). Under the second rule, "[n]o estate in property shall be valid unless it must vest, if at all, not later than [21] years after one or more lives in being at the creation of the estate and any period of gestation involved" (EPTL 9.1.1 [b]). Beneficiaries of a trust must be definite and ascertainable within the perpetuities period. Pursuant to the EPTL 9-1.2 (Reduction of Age Contingency), where an estate would be invalid under the rule against perpetuities because of a person reaching an age in excess of 21 years, the age contingency is reduced to 21 years for the person subject to that contingency. For example, if the grantor provides "to A for life, remainder to A's children who shall reach the age of 30," the remainder interest is invalid (because A could have a child after creation of the interest who could reach the age of 30 more than 21 years after A's death). EPTL 9-1.2 permits the age contingency to be reduced to 21 as to those beneficiaries whose interests would otherwise be invalidated.

Power of Attorney: Standard of care

The standard of care to be exercised by the agent is defined as "observing the standard of care that would be observed by a prudent person dealing with property of another" and exercising a fiduciary duty to act in the best interest of the principal (GOL § 5-1505). An agent's fiduciary duties include: • Acting according to any instructions from the principal or, where there are no instructions, in the best interest of the principal, and to avoid conflicts of interest; • Keeping the principal's property separate and distinct from any other property owned or controlled by the agent; • Keeping a record of all receipts, disbursements, and transactions entered into by the agent on behalf of the principal and to make such record and power of attorney available to the principal or to third parties at the request of the principal; and • Not making gifts to one's self without such authority under the Statutory Gifts Rider.

Will contests: EPTL 3-3.5: Fraud

To prove fraud, it must be shown that "the proponent knowingly made a false statement that caused decedent to execute a will that disposed of his property in a manner different from the disposition he would have made in the absence of that statement" (Matter of Clapper, 279 AD2d 730, 732 [3d Dept 2001]). The objectant has the burden of establishing the existence of fraud (In re Goldin's Will, 90 NYS2d at 603).

Will contests: EPTL 3-3.5: Testamentary capacity: EPTL 3-1.1

Under EPTL 3-1.1, "[e]very person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property." Generally, courts will look to whether the testator: • Understood the nature and consequences of executing a will, • Knew the nature and extent of the property that he or she was disposing of, and • Knew those who would be considered the natural objects of his or her bounty and his or her relationship to them (Matter of Kumstar, 66 NY2d 691, 692 [1985]). The proponent of the will has the burden of proving that the testator possessed testamentary capacity (id.).

Non-probate transfers: Joint tenancies: EPTL 6-2.1, 6-2.2

Under EPTL 6-2.1, property can be owned by an individual or by more than one person as: • Joint tenants, • Tenants in common, or • Tenants by the entirety. A disposition to two or more people creates a tenancy in common unless otherwise specified (EPTL 6-2.2).

Wills: Construction problems: Lapsed legacies: EPTL 3-3.3, 3-3.4 (residue of a residue)

Under New York's Anti-Lapse Statute, if a testator makes a disposition to his or her brother, sister or issue in a will, and that beneficiary predeceases the testator, the disposition passes to the issue of the predeceased brother, sister or issue (EPTL 3- 3.3). If the will is executed after August 31, 1992, the disposition passes by representation (EPTL 1-2.16), otherwise it will pass per stirpes (EPTL 1-2.14). Class gifts to issue, however, are not subject to the anti-lapse statute and are governed instead by EPTL 2-1.2, whereby a disposition to "issue" will pass by representation (effective August 31, 1992). EPTL 3-3.4 provides that that when a residuary disposition to two or more residuary beneficiaries is ineffective in part, the ineffective disposition will pass to the other residuary beneficiaries, ratably, unless the testator has provided otherwise or unless the anti-lapse statute applies to the lapsed portion.

Wills: Construction problems: Ademption: EPTL 3-4.3, 3-4.5

Under the "identity" theory of ademption, when a testator makes a specific disposition of property and the property is not part of the estate at the testator's death, the disposition fails. Where specifically devised property changes form, however, the specific gift does not adeem. Specifically, EPTL 3-4.3 provides that "[a] conveyance, settlement or other act of a testator by which an estate in his property, previously disposed of by will, is altered but not wholly divested does not revoke such disposition, but the estate in the property that remains in the testator passes to the beneficiaries pursuant to the disposition. However, any such conveyance, settlement or other act of the testator which is wholly inconsistent with such previous testamentary disposition revokes it." Under section 3-4.5, if a specific disposition of property is damaged or destroyed before the decedent's death and the insurance company reimburses the executor after the decedent's death, the beneficiary is entitled to that money.

Non-probate transfers: Transfer on death brokerage accounts: EPTL 13-4.1, 13-4.12

Under the Transfer-on-Death Security Registration Act, an owner of securities can register them in his or her own name and, upon death, they pass to the designated beneficiary.

Power of Attorney: Agent's authority to make gifts

Under the statutory short-form POA, an agent may not make gifts in excess of $500 in the aggregate in any calendar year. If the principal wishes to grant his or her agent authority to make gifts in excess of an annual total of $500 for all gifts, the principal must: (1) initial a statement in the statutory short-form POA; and (2) simultaneously execute a separate Statutory Gifts Rider in the exact wording as set forth in GOL § 5-1514. The principal must sign the Statutory Gifts Rider in the presence of two witnesses or acknowledge his or her signature before two witnesses. The Statutory Gifts Rider may also contain modifications or additions as expressly permitted in GOL § 5-1503.

Will contests: EPTL 3-3.5: Undue influence

Unlike due execution and testamentary capacity, the objectant has the burden of proving undue influence (see In re Goldin's Will, 90 NYS2d at 603). The objectant must "show that the influencing party's actions are so pervasive that the will is actually that of the influencer, not that of the decedent" (Matter of Prevratil, 121 AD3d 137, 141-142 [3d Dept 2014]). "[T]he influence exercised [must] amount to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist" (Matter of Walther, 6 NY2d 49, 53 [1959]).