Opinion
File No. 2020-3471
08-29-2022
MATTER OF Rosemarie H. MUELLER-HERGET a/k/a Rosemarie Mueller-Herget, Deceased.
Cahill Gordon & Reindell, LLP, David J. Spacht, Esq., Attorneys for Petitioner, Veronica Heinlein Wood
Cahill Gordon & Reindell, LLP, David J. Spacht, Esq., Attorneys for Petitioner, Veronica Heinlein Wood
In this probate proceeding, the petitioner has submitted four instruments dated March 24, 2016 to the court for its consideration.
Decedent, a citizen of Germany domiciled for 50 years in New York, died possessed of personal property and real property located both in the United States and Germany. The decedent's apparent intent was to dispose of her personal property wherever located and her real property in New York by one instrument (the New York will) and to dispose of her real property in Germany by another instrument (the German will). Based on the affidavits supplied, decedent executed four instruments on the date in question; an English and German language version of the New York will and an English and German language version of the German will. While originally the petitioner sought only the probate of the New York will, the petition was amended to seek probate of the German will as well.
Preliminarily, the court must address the request that the court admit the German will to probate as a counterpart to the New York will. While a statutory definition of counterpart is not set forth in the EPTL or SCPA, common usage, buttressed by Black's law Dictionary, defines a counterpart as a corresponding copy of a legal document. In other words, a duplicate. While an argument could be made given the translation affidavits submitted, that each of the two English language versions of the purported wills have German language counterparts, both English language documents can not, under any circumstances, be deemed counterparts of each other. They contain different dispositive provisions affecting different assets and include different beneficiaries. As a consequence, the validity of each English language document and its ability to be admitted to probate must be determined separately.
The EPTL provides that a will disposing of personal property wherever situated and real property located in New York made within the state by a domiciliary is valid and admissible to probate if it is in writing, signed by the testator and is executed and attested in accordance with the laws of this state ( EPTL § 3-5.1(C)(1) ). The New York will is in writing, signed by the testator, is witnessed by two individuals, bears an attestation clause and is in all other respects compliant with EPTL § 3-2.1. Additionally, attached to the will is a notarized affidavit in compliance with the strictures of SCPA § 1406.
Turning to the German will, the Court must first determine what standard applies to determine whether this instrument was validly executed. Again, since this instrument provides solely for a disposition of the decedent's real property located in Germany, its validity is determined by the law of the jurisdiction in which the land is situated ( EPTL § 3-5.1(b)(1) ).
German law follows the principle of universal succession so a formal probate or appointment of a fiduciary for the inheritance of property is not required. However, in an instance such as this, where a foreign will exists, the applicable rules of the European Union Regulation on Inheritance provides that testamentary succession of a decedent's assets is subject to the law of the country in which the testator had a habitual residence at the time of death. The term "habitual residence" connotes a "close and stable connection with the state" (European Regulation on Inheritance No. 650/2012). As decedent has resided in New York for the last 50 years, it is axiomatic that New York law will again provide the standard for determining whether the instrument is admitted to probate.
As was the case with the instrument above, the form of the German will complies with the requirements of EPTL § 3-2.1 and its execution is supported by an affidavit in accord with SCPA § 1406.
Of particular note, viewing the specific language of both instruments, the court does not discern any apparent conflict in their terms. When two original wills have been offered for probate, it is the duty of the court to construe both of the wills together to give effect to the testator's intention (See , e.g., In re Grant , 70 Misc. 2d 1024, 334 N.Y.S.2d 780 (Sur. Ct. Kings County 1972) ; In re Greenberg, 261 N.Y. 474, 185 N.E. 704 (1933) ).
The New York will provides:
"I hereby revoke all my prior wills and codicils (other than any will I have executed to dispose of my real property in Germany) and declare this to be my Last Will and Testament for all of my worldwide property other than my real property in Germany."
Similarly, the German Will provides:
"I do not wish to dispose of any asset other than my German property, nor do I wish to revoke the will with which I disposed of assets other than my German property and which I executed on March 24, 2016 in New York. "
Clearly the decedent's intent was to devise her real property in Germany to certain individuals and to make dispositions of her personal and real property owned elsewhere in a different fashion. The proffered documents, when read together, effectuate both a complete disposition of all the decedent's property and disposition of same according to her wishes (see Estate of Hensel , 33 Misc. 2d 259, 223 N.Y.S.2d 882 (Sur. Ct. New York County 1961) ).
Finally, the court is satisfied that all of the original wills and foreign language counterparts that were executed on the day in question are in its possession and that none have been physically revoked.
Accordingly, the unopposed petition is granted, and the instruments dated March 24, 2016 offered for probate are admitted as decedent's Last Wills and Testaments.