Schwartz F03 Trusts & Estates Notes

Schwartz F03 Trusts & Estates Notes - 1 9/11/03 2...

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1 9/11/03 2 Questions : 1. If the ultimate objective of estate planning is effectuating a client’s intention, do the substantive rules that operate with respect to wills (the formal requirements) effectuate or frustrate the intention? In In re Groffman , was the client’s intention effectuated? (No.) 2. Will substitutes (joint ownerships, irrevocable trusts) are not subject to the same formal requirements. If these don’t have to satisfy the formal requirements, why should a will be subject to the requirements? Or alternatively, should we impose the requirements on these substitutes? Substantive Discussion of the Substantive Law of Wills Formalities – The rules are created by statute (“The Statute of Wills”). - Will substitutes (i.e., a revocable intervivos trust) until recently have not been subjected to the same oversight/regulation. - From a planning perspective, think in terms of what the maximum formalities may be anywhere/elsewhere, and try to comply with those. Many times, even the minimum formalities aren’t complied with. o Attested wills = The standard form of a will is one that is signed by the testator and witnessed by two witnesses pursuant to a formal attestation procedure. s Requirements of due execution = For a will to be valid and admissible to probate, the testator must meet the formal requirements of the execution imposed by statutes of the appropriate state. These requirements vary from state to state, and generally include requiring the testator to sign at the end of the will and in the presence of all attesting witnesses. The testator might also be required to publish the will, i.e., declare to the witnesses that the instrument is her will. - Place of Execution/Place of Domicile : If the will is executed in New York but the decedent was domiciled in Nevada, comply with the rules from the place of execution of the will (New York). - Self-proving affidavit = We have evolved to the stage where you can attest and affirm to the validity of a will at the time you execute it if a witness signs the document, and no one challenges it. o Florida verbiage is different from New York verbiage. o You now have to go through the costs of probate getting the affidavits of witnesses and sending them to the Court. o As a common law proposition, it’s all or nothing. Strict compliance is required. In re Groffman (p. 227) - Here, the testator’s will devised house and chattels to his wife for life, and the rest of his estate to two of his children by a prior marriage and to his step-daughter by that marriage. The surviving wife (Wife #2) opposes probate of the will, challenging its validity. o If the will is not admitted to probate, under the law of England at the time, the property passes according to the laws of intestacy, and Wife #2 would have inherited everything. She had a sufficient incentive to challenge the validity of the
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2 will. When the will was read, she said, “My Charlie wouldn’t have done that to me.” - The will in question contained a due attestation clause
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Schwartz F03 Trusts & Estates Notes - 1 9/11/03 2...

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