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Court Decides Jurisdiction Issue in Will Contest


A citizen of the United States had been residing in Mexico City. She had substantial properties in New York and in Mexico. In May 1965, she executed a will in New York disposing of all her properties wherever they may be found. She also provided that it is her intention that her will be probated in New York and that he estate by conducted under the jurisdiction of the State of New York. The residuary estate was bequeathed share and share alike to two friends in Brooklyn and in Texas. The will also stated that all taxes and penalties which the executor shall be required to pay should be paid out of her residuary estate without apportionment.

Eight months after the testator executed her New York will she executed a notarial will in Mexico in January 1966. And then in August 1966, she executed a second notarial will in Mexico.

The first will in Mexico provided for general legacies expressed in Mexican pesos and then she instituted as her sole heirs, three residents of Mexico City who all get one-third share in her estate after deducting the legacies. The second will in Mexico was a codicil. It revoked one general legacy. A New York Probate Lawyer said the naming of the three sole heirs was changed: only one was sole heir, the rest were heirs in equal parts. Both Mexican wills were silent about the New York properties and both were silent about the liability of the properties in Mexico to answer for estate taxes in the US.
The testator died in April 1967. Her New York will and the two Mexican wills were offered for probate in New York in accordance with the wishes of the testator. English translations of the wills written in Spanish were also offered as accurate translations of the original wills executed in Mexico. The probate court of New York admitted all the wills into probate, ruling that all three wills constituted the last will and testament of the testator.

After this, letters testamentary were issued to a bank which was named the executor of her estate. The executor paid all the taxes due to the Internal Revenue Service from the New York residuary estate as it is provided for in the will.

The friend of the testator from El Paso, Texas who was named as a beneficiary in the New York will objected to the executor’s payment of taxes in full to the IRS. He contends that the taxes to the IRS should have been paid in equal shares from the properties of the Mexican as well as New York estate. He claims that it is unfair that his share in the residuary estate will be reduced by so much to pay for all the taxes when the estate in Mexico passes to the heirs in Mexico tax-free.

NYC Probate Lawyers said the Court however made these observations: it is common for Americans who have properties in different countries to make several wills. Each will, executed in a different country disposes only of the properties found in that particular country. The testator’s intent in all of the documents is clear: the New York will disposed of the estate’s properties which are found in New York and included the provision as to where to find the funds to pay for the estate taxes. The Mexican wills both disposed of the properties of the estate in Mexico.
Although the New York will stated that that will disposed of all the properties of her estate wherever these may be found, the provisions of the New York will only speak of and disposed of her properties located in New York. Manhattan Probate Lawyers said this only means that while in making her will the testator was fully aware that she had properties in Mexico, she meant the New York will only to dispose of her properties found in New York.

As far as the objection about the greater tax burden on the New York estate, it is clear that the testator has laid the tax burden on her properties in New York. The testator was free to distribute her properties in any way she saw fit, and this includes giving the distributees and heirs in Mexico the benefit of receiving bequests without a tax burden. Although it is indeed unfair, it is the testator’s wishes that the taxes be paid out of her residuary estate properties in New York only. She specifically stated that the New York residuary estate shall be responsible for paying the taxes and that the tax burden shall not be apportioned.

Getting a will admitted into probate is just the first step in securing the rights of a beneficiary in a will. The executor’s acts in collating the properties and in paying the expenses of administration may be questioned by any beneficiary especially when it reduces or diminishes the value of the estate. A skilled lawyer can ensure that the value of the legacy or bequest you inherit will remain intact. At Stephen Bilkis and Associates, our legal team is ready and able to pour through the accounting made by executors to ensure that your legacy or bequest is intact.

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