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Court Discussed Enforceability of Swiss Estate Documents


An American citizen was domiciled in Switzerland. He died on January 2, 1964. He executed a will in New York on November 6, 1961. In this will, he bequeathed his entire residuary estate to his second wife and directed that his will be submitted for probate in New York and for the laws of New York to govern his estate.

The testator’s first wife appeared as the guardian of his two children and objected in the probate proceedings. She claims that the testator’s property must be disposed of under Swiss law as this is provided for by a treaty between the United States and Switzerland. She claims that under the treaty of 1850, her ex-husband’s personal property must be distributed under Swiss law even if they are found in New York. Under Swiss law, her children will be entitled to shares in the estate as forced heirs.

A New York Probate Lawyer said the Surrogate did not rule on the objection of the first wife but it issued a decree admitting the will into probate and it ordered the executor not to pay or satisfy any distributive share without orders of the Surrogate.

The executor now moves to have this restriction removed on appeal.

The Supreme Court said that the expressed desire of the testator that New York laws shall govern the disposition of his estate has been respected by the courts. It is true that the provisions of a treaty between the United States and another sovereign country take precedence over any law of New York. But in this case, the second wife seeks for a strict interpretation of the treaty provisions. And she relies upon an interpretation of the treaty provisions in an unpublished case decided in Switzerland.

The court decisions in Switzerland cannot bind the courts in the United States especially if the interpretation of the treaty in that decision works to deprive American citizens of the right to freely dispose of their property.

The Supreme Court opined that this could not have been the intent of the treaty. Bronx Probate Lawyers said instead the Court held that the treaty alluded to intended to give the citizens of the United States and Switzerland equal treatment with the nationals where they reside. A perusal of the treaty shows that they only give the citizens of both the US and Switzerland the right to acquire, possess and alienate properties in the same manner as citizens of those countries.

The treaty also gives citizens of the US the power to dispose of their personal property in Switzerland by sale, testament, donation or any other manner. More importantly the treaty provides that controversies arising among claimants to a succession shall be decided in accordance with the laws and by the judges of the country where the property is situated.

Brooklyn Probate Lawyers said this clearly means that if the ex-husband who is a US citizen has elected in his will to make the laws of New York apply to his will then this is allowed by the treaty especially when it disposes of properties found in New York. The treaty cannot make the laws of Switzerland apply to properties found in the United States as the first wife argues. This interpretation of the treaty is unwarranted.

For these reasons, the restriction imposed by the Surrogate’s Court of New York in its decree is removed. It is understood that Swiss courts shall apply Swiss law in controlling real and personal properties of the testator within their jurisdiction while New York courts shall apply New York law in controlling real and personal properties of the testator in New York.

Administering an estate requires that all the properties of the testator be gathered and accounted for before it is distributed. A skilled lawyer can help you prepare a report and inventory of all the properties of the estate. He can also help you collect receivables due to the estate. Legal guidance is indispensable in cases where the estate has to run after those debtors of the estate. At Stephen Bilkis and Associates, capable legal team is ready to confer with you and assist you.

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