NYLE Trusts, Wills & Estates 4 — Questions and Answers
Question 1: A New York testator executes a valid will and later executes a codicil that is witnessed only by one person. The codicil:
- Is valid because a codicil requires only one witness
- Is invalid because New York requires two witnesses for any testamentary instrument (Correct answer)
- Is valid if the testator also had it notarized
- Republishes the original will but is itself unenforceable
Correct answer: Is invalid because New York requires two witnesses for any testamentary instrument
Under EPTL § 3-2.1, a codicil must comply with the same formalities as a will, including the signature of two witnesses.
Question 2: Under New York law, a spendthrift trust provision is effective to protect trust assets from:
- Claims of the beneficiary's creditors while assets remain in trust (Correct answer)
- The trustee's creditors
- Child support and alimony obligations of the beneficiary
- Federal tax liens against the beneficiary
Correct answer: Claims of the beneficiary's creditors while assets remain in trust
A spendthrift clause under EPTL § 7-1.5 prevents voluntary or involuntary transfer of the beneficiary's interest and protects against most creditors, though not all (e.g., government claims, family support obligations).
Question 3: In New York, the doctrine of 'dependent relative revocation' applies when:
- A testator revokes a will based on a mistaken belief that another valid will exists (Correct answer)
- A beneficiary predeceases the testator, revoking that bequest
- A codicil revokes part of an earlier will and those parts are interdependent
- A testator revokes a trust because the trustee is no longer living
Correct answer: A testator revokes a will based on a mistaken belief that another valid will exists
Dependent relative revocation treats a revocation as conditional when it is based on a mistake of fact or law, allowing reinstatement of the prior will if the new disposition fails.
Question 4: Under New York EPTL § 3-3.3, the anti-lapse statute applies to save a bequest from failing due to the predeceasing beneficiary if the beneficiary was:
- Any named individual in the will
- The testator's issue or sibling (or their issue) (Correct answer)
- Any blood relative of the testator
- A named charity
Correct answer: The testator's issue or sibling (or their issue)
New York's anti-lapse statute (EPTL § 3-3.3) only applies to gifts to the testator's issue or siblings, allowing the gift to pass to the deceased beneficiary's descendants.
Question 5: A New York trustee wishes to resign. Under EPTL § 7-2.6, how may a trustee properly resign?
- By sending a letter to all beneficiaries
- By court order or as specified in the trust instrument (Correct answer)
- By filing a resignation with the county clerk
- By appointing a successor trustee and transferring assets
Correct answer: By court order or as specified in the trust instrument
Under EPTL § 7-2.6, a trustee may resign by court order or pursuant to a provision in the trust instrument permitting resignation.
Question 6: Under the New York EPTL, when does a gift fail due to 'ademption by satisfaction'?
- When the testator gives the beneficiary the same property during the testator's lifetime with intent to satisfy the bequest (Correct answer)
- When the testator revokes the bequest by a codicil
- When the beneficiary disclaims the gift within 9 months of the testator's death
- When the bequeathed property is destroyed by fire before the testator dies
Correct answer: When the testator gives the beneficiary the same property during the testator's lifetime with intent to satisfy the bequest
Ademption by satisfaction occurs when a testator makes an inter vivos gift to a beneficiary, intending it to satisfy in whole or in part a testamentary gift.
Question 7: A New York court is asked to construe an ambiguous trust that says income goes to 'my children.' The testator had three biological children and one legally adopted child. Under New York law, the adopted child:
- Is excluded because 'children' refers only to biological children
- Is included on equal footing with biological children under EPTL § 2-1.3 (Correct answer)
- Is included only if the trust instrument specifically names the child
- Is included only if the adoption occurred before the trust was executed
Correct answer: Is included on equal footing with biological children under EPTL § 2-1.3
Under EPTL § 2-1.3, adopted children are treated the same as biological children for purposes of class gifts, unless the instrument expressly provides otherwise.
NYLE Trusts, Wills & Estates 4
A New York testator executes a valid will and later executes a codicil that is witnessed only by one person.
The codicil: