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Petitioner Seeks Summary Judgment on Turnover Petition


A New York Probate Lawyer said that, the administrator of the estate of the decedent, and petitioner in a turnover proceeding against respondent Companies, and law firm counsel to the Public Administrator of the County of New York, now seeks summary judgment and treble damages. Respondent cross-moves for summary judgment, seeking dismissal of the turnover petition and revocation of petitioner’s letters of estate administration.

A New York Will Lawyer said that, the decedent, a domiciliary of Brazil, died February 11, 2000, survived by no known distributee. On June 27, 2002, the administrator of the estate proffered decedent’s one-page handwritten will dated July 25, 1998. The will bequeaths decedent’s “holdings at the Citibank in New York” to him. During the pendency of the administrator’s probate proceeding, respondent company obtained probate in Brazil of a later will, dated March 12, 1999. On March 11, 2003, the Brazilian State of Bahia, Judiciary Power, 1st Family, Successions & Orphans Court appointed respondent the executor of decedent’s March 12, 1999 will. Article FIRST (of a certified translation of a court certified copy) of that later will provides: “That this was the only and exclusive testament, and any previous act was hereby revoked.”

Westchester County Probate Lawyers said that, thereafter, CIS, presented with certified translations of: (1) decedent’s death certificate; (2) the March 11, 2003 certificate issued by the Brazilian State of Bahia, Judiciary Power, 1st Family, Successions & Orphans Court to respondent, as executor of decedent’s March 12, 1999 will; and (3) the March 12, 1999 will itself, transferred decedent’s investment account, which the administrator estimates at $70,000 to the respondent, as executor of decedent’s will.

A Suffolk County Probate Lawyers said that, on July 12, 2004, this court—unaware of the probate of a later will—probated the earlier July 25, 1998 will proffered by the administrator, and on July 14, 2004, issued to him letters of administration. On October 8, 2004, he filed a petition for the turnover of property belonging to decedent’s estate. First, he claims CIS (which already had turned over to him the checking account of which he and decedent were joint tenants, and which was on notice of the pendency of his probate proceeding), lacked authority to choose between him and respondent’s competing claims, and improperly transferred decedent’s investment account to him.

The issue in this case is whether respondent’s motion for summary judgment on the turnover petition and revocation of petitioner’s letters of estate administration should be granted.

A motion for summary judgment may be granted only if the allegations, viewed in a light most favorable to respondent(s), fail to raise a triable issue of fact.

EPTL 13-3.4 prescribes the circumstances under which an institution may, without a court order, turn over to a foreign fiduciary personal property belonging to the estate of a non-domiciliary. At the time CIS transferred decedent’s account: (1) Respondent was authorized by the foreign jurisdiction in which decedent was domiciled to receive decedent’s personal property; (2) the administrator had not yet been appointed administrator, and therefore could furnish no written notice of his fiduciary appointment; (3) CIS evidently had not received written notice of the existence of any New York creditor; and (4) CIS had no reason to believe, or the persons he represented, would not get the benefit of the property. Accordingly, CIS is availed of the protections of EPTL 13-3.4.

Second, the administrator challenges the validity of the March 12, 1999 Brazilian will. He claims the certified copy of the document written in Portuguese and furnished by CIS is not a will, because it is signed by an individual other than decedent. He suggests the translation furnished by CIS is not a translation of decedent’s Brazilian will, because it is date stamped March 6, 2003, more than three years after decedent’s death. (In the alternative, the administrator, noting the recitation in the Brazilian will that decedent was “sick in bed at her home,” suggests decedent was “too weak and sick, on the verge of death, and therefore unable to sign the will,” and questions decedent’s competence. He thus attacks both the genuineness of the will and decedent’s testamentary capacity.

Third, the administrator argues he and decedent considered the CIS investment account a joint account, contributing to it equally. He, however, has tendered no evidence the account was in the form of a joint account. Thus, he has failed to meet his burden of establishing the existence of a joint account.

Fourth, he claims decedent (who moved to Brazil as an adult and for whom Portuguese was a third language) was not completely fluent in Portuguese, and—despite the clarity of her testamentary expression—intended the Brazilian will to govern only property situated in Brazil. Contending decedent did not intend to revoke the New York will, he asks the court to consider evidence extrinsic to the wills to ascertain decedent’s actual intent. He alleges: “She [decedent] often told me that the people in Brazil did not even know about her bank accounts in New York. One reason for this is she felt that there are legal restrictions to a Brazilian having foreign bank accounts.” He also alleges decedent told him: “No one knows about this money, only me. So no one else can touch it.” Further, he asserts: “Citibank has two branch offices in Salvador, Brazil. The decedent had a bank account with the Citibank office in Salvador, Brazil. There was only an insignificant amount of money in that account for several reasons, one being that due to hyper-inflation in Brazil any funds held in that country are often wiped out by inflation.”

Extrinsic evidence of a testator’s intent is inadmissible to vary or contradict the clear and unambiguous terms of a will. The standard for admissibility, therefore, is two-pronged: not only must extrinsic evidence demonstrate that a literal reading of the will does not express testator’s intent, but testator’s actual words must be susceptible to the interpretation gleaned from the extrinsic evidence.

Here, decedent’s Brazilian will states it is decedent’s “only and exclusive testament, and any previous act was hereby revoked.” Revoking all prior wills, it identifies itself as decedent’s sole and exclusive testament. There is no language in the earlier New York instrument susceptible to an interpretation that decedent intended for the New York will to survive, and not to be superseded by, the Brazilian will. Any “purported misapprehension of decedent” as to the effect of instruments she signed disposing of her New York assets, therefore, does not “suffice to create ambiguity where none otherwise exists”. Accordingly, the court may not consider extrinsic evidence to alter the plain meaning of the instruments.

Finally, the administrator’s claim that he was harmed by a delay by the respondents in rendering a report on behalf of the Public Administrator, is denied. He contends that, had furnished his report in a more timely fashion, the court could have issued letters to him and the respondent had an opportunity to claim decedent’s CIS account. However, respondent companies bear no responsibility for the fact that the will proffered by the administrator was not probated first; indeed, probate of the later will preceded even the completion of jurisdiction in his proceeding. More important, the order in which the wills were admitted to probate does not affect the validity or invalidity of the earlier will. Probate of the later will, with its explicit revocation of any prior will, invalidates the earlier will.

CIS lacks standing to seek revocation of the administrators’ letters of administration. The court, however, sua sponte, may revoke letters issued under an instrument which has been declared invalid by another court. In addition, the court has inherent power to set aside its decree in the administration of justice.

The court held that, the July 25, 1998 instrument having been invalidated by probate of a later will, this court concludes that the decree rendered by Surrogate admitting to probate the July 25, 1998 instrument should be vacated, and letters of administration issued thereunder to the administrator of the estate should be revoked.

Accordingly, the issue of vacatur is respectfully referred to Surrogate motion for summary judgment is denied, and CIS’s cross motion for summary judgment is granted to the extent it seeks dismissal of the turnover proceeding. This court notes the vacating of the probate decree is without prejudice to renewal, should the Brazilian State of Bahia, Judiciary Power, 1st Family, Successions & Orphans Court invalidate or reform decedent’s March 12, 1999 will.

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