Perspectives on Legal Analysis and Writing 1/18/2012 Wills US Constitution substantive due process clause gives every citizen

the right to die, but states can require that the right to die was the patients intent. Living will or health care proxy NY Public health law even though the patient has not left any written instructions then this decision to die can be made by the following people -court appointed guardian -spouse -domestic partner -adult child -parent -sibling If the patient had executed a written document (a living will) then that document supersedes the NY Public health law. Intestacy Our legislatures decision that if there is now will, this is what the decedent would do. If the testator or decedent did not have a will or she executed a will improperly (it was not properly SWEPT) then her estate will be distributed under the law of intestacy. Escheat to the state of new york if no will and no kinship through children of first cousins. Wills Joint wills -one instrument, signed by two people Mutual wills -two separate documents with reciprocal provisions To enforce these wills as Ks, both must specifically contain -statement that the will is intended as a contract -and that neither party can alter or revoke the will when one of them dies 3rd party beneficiary claims (constructive trust) invite litigation Survivor of a joint or mutual will is permitted to sell inherited property for bona fide living expenses but the survivor cannot deplete the estate by making gifts or executing a new will.

Executing a Will -to be valid a will must be SWEPT -signed by an adult testator -in writing -Signed at the End by the testator -Published -Two witnesses NY requires strict adherence to the SWEPT procedures The testator must be an adult (18yr old) and must sign the will at the end Any provision appearing under the testators signature (other than witnesses signatures) will be disregarded by the surrogate even though that provision was there when the will was signed. Any amendment made to the will after its execution is invalid whether inserted above or below the signature. A Codicil to the will must be SWEPT in order to amend a will. A 3rd person can sign a will for Testator, if at his direction and in his presence also there must be 4 signatures on the will -3rd persons signature -testators signature done by the 3rd person -2 witnesses Testator can sign the will (1) in the presence of the 2 witnesses or (2) alone provided that he later shows the signature and acknowledges the signature is his to the witnesses they do not have to see him sign the will. Where Testator signs in the presence of the 2 witnesses then the exact order for signing does not have to be followed, thus the witnesses can sign first and then the testator NY Court of Appeals Rule If the witnesses do not sign together, then to avoid the possibility of fraud, they must sign within 30 days from each other. The EPTL creates a rebuttable presumption that the 30-day time period has been satisfied. The testator must publish the will; they must declare that the document that the witnesses are signing is a will.

If a NY attorney improperly SWEPT the will, and it was denied probate by the surrogate, and a named beneficiary did not receive a 100,000 dollar bequest, can that beneficiary sue that attorney for legal malpractice? -no privity of contract between the attorney and the beneficiary in NY -Under Multi State Bar section, the beneficiary is a 3rd party beneficiary and does have privity to sue In NY if lawyer gives negligent estate planning advice resulting in an economic loss to the estate, then the estate can sue the lawyer for legal malpractice. NY recognizes an nun cupative will, which is an oral will with 2 witnesses and it recognizes a holographic will which is unwitnessed but entirely in testators handwriting when executed by a member of the armed services or people accompanying the armed services in combat in an enemy country or on the eve of embarking to a warzone. Foxhole Wills These wills are good for one year, from when the soldier returns from combat but if when the one year expires he is not competent to make a new will, then the handwritten or oral will remains in effect. Incorporation by reference New York (minority view) does not recognize incorporation by reference into a will, thus an unattested (unwitnessed) document does not become part of the even though the will specifically refers to it. You can incorporate the terms of your wifes valid will into your own A will can incorporate the terms of an existing inter vivos trust (pour over provision), provided the trust instrument was signed and the signature acknowledged in a manner required to record a deed. The trust terms can be altered after the will was executed but the existing trust terms at the moment of testators death will control. Codicil to a will A codicil edits or supplements a will and republishes the will as of the date the codicil was SWEPT. The EPTL specifically states that a codicil cannot attempt to revoke a will. The execution of a codicil may effect (1) advancements, (2) the rights of afterborn children, or (3) a divorced surviving spouce; because a codicil republishes Ts will as of the later date when the codicil was SWEPT. Will Witnesses If a beneficiary named in testators will, is also a necessary will witness then the will is valid but the bequest to that witness is void, unless at the time of the

execution of the will, there was at least two other witnesses to the will who received nothing under the will. If three witnesses sign the will, then the super numorary (3rd witness) does not lose his bequest because his testimony is not necessary to establish the will because there are two other attesting witnesses who have nothing to gain from the terms of the will. If 2 of 3 or 3 of 3 are interested in the will, then all lose their bequest because it was not witnessed by two people who received nothing under the terms of the will. If the necessary will witness is also an intestate distribute, that is, a relative who would benefit who would benefit if there was no will, then she is permitted to take her bequest under the will or her intestate share which ever amount is less. T leaves only hier son 60% and friend 40%, and if anything is left over it goes to charity. Friend and son sign. What happens? Friend gets nothing. Son gets 60% rather than 100% under the statute. A necessary witness is not disqualified from (1) taking under a subsequent codicil that names her as a beneficiary provided she did not witness the codicil, (2) acting as a trustee or executor named in testators will. If the attorney that drafted the will is named as the executor, or the will names an attorney or employee at the attorneys firm (could be paralegal) then that testator must acknowledge in a separate document, signed by testator and one disinterested witness, that anyone can act as the executor, and that by naming the attorney as the executor the attorney will receive two fees (one as executor and one as attorney), failing to get this document reduces the executors fee by . This rule seeks full disclosure for when the testators attorney is the executor. Revoking a will A will can be revoked in two ways (not in a codicil) (1) in a subsequent will either expressly or impliedly 2 wills are too different to be applied together, (2) by the testator without any witnesses, destroying the entire will by tearing, burning, cutting, cancelling or obliterating performed by the testator. A third person can destroy Ts will but only in her presence and at her direction, and there must be two additional witnesses who heard the direction and saw the destruction. Four People MUST be in the room. There can be no partial revocation of a will be a physical act, such alterations can only be done by a codicil or a second will.