Joint AND Mutual Wills - Lecture notes 10 PDF

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New York Trust and Estates EPTL Lecture...

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Trust and Estates Notes Spring 2020 JOINT AND MUTUAL WILLS Joint Will v. Mutual Will • Joint Will: Single instrument, executed by 2 people, which is intended to operate as the will of each. The will acts twice and must be probated twice. o Don’t EVER make a joint will. It’s terrible practice b/c there’s constant litigation and marital deduction tax law issues–in JW, W gives to H & if H dies, then it goes to issue in equal shares but for tax purposes, it needs to be an outright gift to H. EXCEPTION: Q-tip ▪ I.e., “I give everything to my husband and when we’re both dead it goes to our kids.” IRS sees this not as an outright/ absolute gift, but to husband in a trust ! so it may be taxed as if it were not eligible for the marital deduction • Mutual will: separate wills by two persons that contain similar provisions– usually married people. Issue that arises!when a person dies who has a joint or mutual will and gives all the property to the other spouse and then upon death to other beneficiaries!when the first spouse dies the other goes and changes the will!issue is whether there is a contract not to revoke. GENERAL RULE- A will is freely revocable until you die UNLESS testator makes an express and written CONTRACT not to revoke (makes the will irrevocable by use of a K) • STANDARD TO PROVE THERE WAS A CONTRACT: clear & convincing evidence • If there is fraud, the court can create a constructive (implied) trust–remedial device to compel the wrongdoer to convey title to the property to the proper beneficiary EPTL §13-2.1. STATUTE OF FRAUDS: Agreements involving K to establish a trust/will

• (a) Every agreement/promise/undertaking is UNENFORCEABLE UNLESS it or some note/memorandum is in WRITING and SUBSCRIBED BY THE PARTY to be charged therewith, or by his lawful agent, IF such agreement/promise/undertaking is: o 1) a contract to establish a trust o 2) a contract to make a testamentary provision of any kind o 3) a promise by a personal representative to answer for the debt or default of his decedent • (b) A CONTRACT to make a JOINT WILL, or NOT TO REVOKE A JOINT WILL, can be established only by an express statement in the instrument saying that it is a JOINT WILL and that the provisions thereof are intended to constitute a CONTRACT between the parties that cannot be revoked. (applies only to wills made after 1983) o Issue is always whether you choose to revoke the joint will ! must expressly declare that its irrevocable both now and in the future o Literally needs to say something like “we declare this to be a joint will and its provisions are intended to serve as a contract between the two parties that we will never revoke” ▪ Under NY law !YOU NEED AN EXPRESS STATEMENT IN THE WILL SAYING IT’S A JOINT WILL AND SHOWS A CONTRACT NOT TO REVOKE!!!!!!! Joint and Mutual will problems...