Opinion
No. 2617/2003.
2005-12-23
PROBATE PROCEEDING, WILL OF Mario LOZZA, Deceased. Proceeding to Vacate a Waiver and Consent to the Will of Deceased.
McCarthy Fingar LLP, White Plains, for the petitioner. Goodrich and Bendish, White Plains, for the objectant.
McCarthy Fingar LLP, White Plains, for the petitioner. Goodrich and Bendish, White Plains, for the objectant.
ANTHONY A. SCARPINO JR., J.
In these contested probate and miscellaneous proceedings, Virgilio Lozza (“Virgilio”) and Lucio Lozza (“Lucio”) request that the court make an order pursuant to CPLR 2201, staying the proceedings pending a determination by an Italian court of a proceeding before it as to its jurisdiction over the estate of Mario Lozza. The motion is opposed by Massimo Lozza (“Massimo”), the preliminary executor. For the reasons stated below, the motion is denied.
The decedent resided in Westchester County for about 20 years. He returned to Italy in 2002, and at the time of his death, he was a citizen and domiciliary of Italy. The decedent and his predeceased wife had three sons, Virgilio, Lucio and Massimo. Virgilio is a naturalized citizen of the United States who resides in Westchester County; Lucio is a citizen and domiciliary of Italy; and Massimo is a citizen of Italy who resides in New York.
On or about June 4, 2003, the decedent returned to New York, and on that date, he executed the purported will (known in the instrument as the “American Will”). In the instrument, the decedent left Massimo all of his American assets and left nothing to Virgilio and Lucio. The instrument also provided that it applied solely to the decedent's American assets; that the decedent elected that the validity and the effect of the will was to be governed by and construed in accordance with New York law; that the decedent wanted the instrument probated in the State of New York; and that none of the assets of his American estate were to be transferred out of New York for administration.
On September 10, 2003, the decedent died in Belluno, Italy. On October 21, 2003, Massimo filed a petition in this court for probate of the instrument. Lucio executed a waiver and consent to the probate. On November 17, 2004, Virgilio filed objections to probate, and the court issued a discovery order. Discovery has not been concluded.
On January 20, 2005, Lucio filed a petition to vacate his waiver and consent to the probate. On March 14, 2005, an answer was filed. On or about June 15, 2005, Virgilio and Lucio filed a proceeding in the Court of Belluno, Italy (the “Italian proceeding”) asserting that court's jurisdiction over all of the assets of the decedent and contending that the law of forced heirship applies to the assets, wherever located.
On August 12, 2005, Virgilio filed an order to show cause seeking to stay the probate and the miscellaneous proceedings in this court until some time after January 30, 2006, the hearing date in the Italian proceeding. Virgilio and Lucio argue that a stay should be imposed because any determination by this court may render moot issues which are also present in the Italian proceeding. Massimo argues that only this court can make a determination as to the validity of the American will and that any stay of the proceedings will prejudice the American estate.
There are no grounds upon which to impose a stay. As a preliminary matter, this court has jurisdiction over the decedent's American estate by virtue of the assets being left in New York State ( seeSCPA 206). Therefore, the court has jurisdiction to determine the validity of this instrument which purports to do no more than administer American assets.
Furthermore, as to the choice of law to be applied, EPTL 3–5.1[h] provides, in part, that
whenever a testator, not domiciled in this state at the time of death, provides in his will that he elects to have the disposition of his property situated in this state governed by the laws of this state, the intrinsic validity, including the testator's general capacity, effect, interpretation, revocation of alteration of any such disposition is determined by the local law of this state. * * *
The instrument in which the decedent elected to have his American assets disposed of in accordance with New York law satisfies the statute. In Matter of Renard (56 N.Y.2d 973), the Court of Appeals held that a French domiciliary in her will, could opt for the application of New York law to her New York property, thereby precluding her son from taking a share of it as the forced heirship laws of France would have required.
Based on the foregoing, it is clear that this court must ultimately determine the validity of decedent's “American Will” since admission of the will to probate will control the disposition of decedent's American assets without regard to any contrary ruling by the Italian court. That being so, there is no reason to delay the proceedings pending here.This matter is adjourned to February 8, 2006, for a discovery conference after the call of the calendar.
Settle order.