Law School Discussion

Trusts and Estates Hypo

Trusts and Estates Hypo
« on: December 12, 2007, 03:37:47 PM »
X died a domiciliary of New York State on December 1st, 2006.  He was survived by a
daughter D.  A son of X, namely S, disappeared six years ago leaving a spouse and three adult
children (grandchildren to the decedent X).  While the disappearance of S was sudden and
unexplained, no effort was made by the wife and children of S to have S declared dead.  Now,
however, the three children of S wish to contest the will of X (which will leaves everything to
the American Cancer Society).  D, the daughter of X, does not wish to contest the will of X.  What are the rights of the three children of S and how can they proceed to protect those rights?

I can't seem to figure out what the rights of the three children of S are besides using the Cypres Doctrine. Can someone help me please? Thank you.


Re: Trusts and Estates Hypo
« Reply #1 on: December 14, 2007, 06:59:59 AM »
Not sure if you've already had your exam, but I wouldn't use cy pres, which applies to modify trusts (not wills). I would argue that the gift to the ACS was based on either mistake or delusion. If you could prove that the decedent reasoned from an incorrect fact (that S had run away or was still alive, etc), you might be able to wipe out the gift to the ACS which was dependent on that incorrect fact. because the ACS gift was a residuary that failed, you'd claim that the intestacy statutes should be followed, and petition the court to find that S was dead and S's children are the heirs at law.
Just a guess, based on Florida's statutes, not New York's. This probably wouldn't work, but it's the argument I'd make.


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Re: Trusts and Estates Hypo
« Reply #2 on: December 14, 2007, 07:53:34 AM »
I agree with Raven.  Mistake or delusion is probably the only grounds upon which a contest could be made.  The only other possibility I see (and I don't know NY law here, so it might be inapplicable) is if the will was drafted before the grandkids were born AND the pretermitted heir statutes, if there is one, addresses heirs beyond children/issue.  If not, then everything else Raven said I think is good, although likely to fail.