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Courts Decide Will Contest Regarding German vs. American Wills


This proceeding is about the two last wills made in different states by a deceased woman. The petitioner in this appeal requests for the validation of the will executed in 1955 while the deceased was in New York County. The petitioner as the representative in administering the assets leaves the residuary estate to a New York charity. The deceased traveled to West Germany in 1965 and executed again a holographic will in 1967. The will provides that it revokes all prior wills. The woman died in Germany in 1968. The respondent cross-petitioner is the deceased’s post deceased brother and is the sole successor under the later will. The latter will was established in the court proceedings in West Germany in 1972. The respondent cross-petitioner moved for judgment without trial to dismiss the petition and to deny probate to the prior 1955 will. In addition, the respondent filed a petition for ancillary letters on the basis of the 1967 will.

The court rendered a temporary decision holding the motion for the judgment without proceeding in suspending a trial to allow a full opportunity for each part to present proof and cross-examine each other’s experts on German law. A New York Probate Lawyer said the facts of the case were set forth in that decision and will be presented when necessary. The trial was held upon the issues of whether the German courts issued a judgment or an administrative certificate, whether the document issued by the German court contains a final ruling under the law or merely a pronounced determination and whether a finding of German residency was essential to the establishment of the will in Germany.

The court found that the legal order was rendered by courts of record in Germany in the establishment of the 1967 holographic will of the deceased. In addition, the certificate of inheritance issued by the District Court in Germany constitutes a final decree and not merely a pronounce determination. Moreover, finding of German residency was necessary to the establishment of the 1967 will in Germany. On the basis of the recognized rules, the court gives full acknowledgment to the establishment of the 1967 will of the deceased in the German courts.
The experts in German law testified for both parties and clarified the procedure for validation of the wills in their country. Those experts agreed that the establishment of a will is a legal court procedure and their testimony and other evidence established are characteristics of such procedure. Nassau County Probate Lawyers said that based on the record, the district court is the only element of the German State court system which deals with the validation of the last will and testaments proceedings.

The district court in Germany who handled the proceedings issued a long preliminary judicial determination to award the certificate of inheritance to the respondent cross-petitioner, the brother of the deceased. The court heard testimony and took evidence in the proceeding. The proceeding was contested by the petition and the charity raised and brought a court case on the issue of the deceased person’s alleged incompetency in making the 1967 will. The contestants, the petitioner and the charitable organization appealed the judicial determination to the Superior Court. The superior court then reviewed the decision of the lower court and received advice from the experts in international law. The Superior Court also rendered a long legal decision upholding the preliminary determination of the District Court. The District Court then awarded the certificate of inheritance to the proponent of the 1967 holographic will.

The petitioner has argued that the certificate of inheritance cannot be deemed final in the sense that the matter was already settled in the court in New York. It is always subject to revocation upon proof of falsity or fraud in a proceeding brought in the same District Court which issued the certificate. The acknowledged testimony revealed that the certificate of inheritance is given full force and effect in Germany. The court finds that the capacity of the District Court to revoke a certificate of inheritance is no way to lessen the legal effectiveness of the certificate of inheritance, certainly not unless and until so revoked or recalled.

The court also considered the effect of further proceedings in the German courts which may be conducted despite the issuance of a certificate of inheritance on the authority of their District Court and Superior Court. The opponent’s action may be brought in Superior Court, as a court of original jurisdiction, which is a plenary procedure concluding in the issuance of judgment which is characterized as final. In the case, the petitioner and the representative of the earlier will, after instituting the proceedings before the Surrogate’s Court, made application to the Superior Court to initiate such an opponent action but withdrew the action shortly because the costs of $39,000 were imposed as a condition. If it is still open to the petitioner to continue, or begin retrial, such opponent action in the Superior Court, and in the unlikely event that the Superior Court should overrule itself or the Supreme Court should reverse the current final ruling, then, perhaps it would be presented with newly discovered legal evidence superseding what is now final.

NYC Probate Lawyers said the issue upon which evidence and testimony was given at the trial is whether a finding of German residency was essential to the establishment of the 1967 will in Germany. The evidence submitted is definite that both the District Court and the Superior Court dealt thoroughly with the questions of residency and that the issue was indeed a necessary aspect of those proceedings. The District Court took testimony and received evidence upon the question of residency and determined that the deceased was a resident in Germany at the time of her death. The Superior Court reviewed the issue of residency as well, enlisting the help of German experts in international law. Testimony clearly showed that it was requisite for the certificate of inheritance as a legal requirement, to establish residency in West Germany. It is uncontested that a finding of such German residency was essential to the establishment, that is to say, validation of the later will in Germany.

The evidence clearly established that the rulings of the District and Superior Courts of West Germany have been provided by courts duly constituted under the laws of West Germany, with the authority over the subject matter of the action and over the parties. The court, therefore, gives full recognition to the certificate of inheritance issued by the District Court of Germany, and the appellate decree of the Superior Court establishing the 1967 will of the deceased.
The respondent cross-petitioner seeks ancillary letters of administration in the court with respect to the 1967 will and the court has the power to issue such orders in the proceeding. The deceased left the property in the County of New York. Accordingly, the court decided that the motion for dismissing the petition for validation of the 1955 will, and allowing petition for ancillary letters of administration of the 1967 holographic will established in Germany, is granted. The State Tax Commission has appeared and has been satisfied. The will must be admitted to ancillary validation before ancillary letters are issued. The court interprets the cross-petition as requesting admission of the will to ancillary validation and such request is granted and ancillary letters will be issued.

One of the most common problems encountered in a last will and testament is the multiple execution of such document. If the same happens to you or your family member, the competent New York Probate Lawyers at Stephen Bilkis & Associates will gladly assist you in dealing with such legal troubles.

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