Article 16 of the New York’s
Surrogate’s Court Procedure Act deals with foreign estates. The legislative purpose for the enactment of
the procedure with respect to foreign estates includes the following: “If
the law of such jurisdiction does not provide for the appointment of a
fiduciary but vests the property of a decedent in a person or persons subject
to the obligation to pay the decedent’s debts and expenses and the legacies
bequeathed in his will or the distributive shares provided by law, such a
person shall be recognized as the person acting therein to administer the
decedent’s estate in accordance with the law thereof, but only if such
person has complied with all the requirements of such jurisdiction to entitle
him to receive the property of the decedent and is acting or will act there to
administer the estate“ (underlining my own). What may seem to be at first glance a benign
statement can yield unanticipated complications, particularly if foreign policy
is diametrically opposed to the wishes of the testator.
In re Estate of Gyfteas, 59
Misc. 2d 977, 300 N.Y.S.2d 913, 1968 N.Y. Misc. LEXIS 993 (Surrogate's Court of
New York, New York County December 12, 1968), the testator was a Greek citizen
and domiciliary who owned property in New York.
His Will named three executors and devised some monetary bequests, with
the residuary going to charity. Since
the decedent did not have a valid New York Will, an administration proceeding
was begun by one of the executors for the property in New York. Then the legatees filed a separate petition
for letters of administration for the New York property claiming that the
executors had no right to distribute the New York-based assets.
N.Y. Surr. Ct. Proc. Act §
1604(1) establishes a priority list as to the granting of ancillary letters
with respect to a foreign testator’s property in New York:
(a) The person expressly
appointed in the will as executor with respect to property located within this
state.
(b) The person to whom
domiciliary letters have been issued or if domiciliary letters are not issued,
the person appointed in the will to administer all property wherever located.
(c) The person acting in the
domiciliary jurisdiction to administer and distribute the testator’s estate.
(d) A person entitled under
this act to letters of administration c.t.a.
Since the Will was a Greek
Will, the New York court looked to the law of Greece to determine whether the
named executors in the Will had the authority under SCPA § 1604 to qualify for
ancillary letters. A hearing was held on
this issue. Under Greek law, where a
Will contains a charitable bequest, only the executor may distribute the
assets. Where there are no charitable
bequests, the powers of the executor are subordinate to those of the
legatee(s). Citing Greek law, experts
for both the petitioners and the respondents agreed on this point. Thus, under New York law and the priorities
established under SCPA § 1604(1), the executor under the Greek Will was granted
ancillary letters in preference to the legatees. However, the court stipulated that no assets
from New York could be moved to Greece without further order of the court and
notice to the legatees.
In part, this result was possible
because the United States has diplomatic relations with Greece. But what happens when the legatees reside in
a country where State Department regulations circumscribe what the courts may
do?
In re Estate of Mitzkel, 36 Misc. 2d 671, 233 N.Y.S.2d 519, 1962 N.Y.
Misc. LEXIS 2467 (Surrogate's Court of New York, Kings County October 15, 1962
), the decedent, a New York resident of Lithuanian descent, left his New York
estate to his two sisters, both citizens and residents of Lithuania. At the time, Lithuania had been annexed by
the Soviet Union. The Consul General of
Lithuania at New York filed a petition in Surrogate’s Court on behalf of the
Lithuanian nationals. Thereafter, the
sisters were transported 500 miles from Lithuania to Moscow where they executed
a power of attoney before the U.S. Consul in Moscow appointing a New York law
firm to represent them in Surrogate’s Court.
Based on this power of attorney,
the Soviet government had hired
attorneys in New York to represent the interests of the sisters. These attorneys then filed a notice of
appearance with the court. The Consul
General of Lithuania then filed a motion seeking to have declared as invalid
the sisters’ power of attorney executed to the Soviet government and the notice
of appearance by their attorneys.
At issue was the validity
of the power of attorney. Several
factors pointed to the illegitimacy of the Soviet power of attorney. First, the instrument stated that the sisters
lived in the U.S.S.R instead of Lithuania.
Second, the sisters were illiterate and could not have understood the
contents of the power of attorney.
Third, the sisters had been forced the travel from their homes under
duress by Soviet officials. Fourth, the
services of the law firm had been illegally procured by an agent of the Soviet
Union, namely a lawyers’ collective called the "Iniurcolleguia" and
described as being "an essential force in subjecting the common people of
Russia to the dictator's power" (Wash. U. L. Q., supra, June, 1958, p.
252), and "tools of the State" (48 Cal. L. Rev., supra, pp.
794-795). In the instant case, the goal
of the Soviet lawyers’ collective was to extract fees from the sisters to be
deposited into a common treasury used to pay these Soviet lawyers.
The United States never recognized
the incorporation of the Baltic States (Estonia, Latvia, and Lithuania) into
the Soviet Union. In a letter dates
March 26, 1948, the State Department had cautioned each State governor not to
give access to the Surrogate’s Court (or its State equivalent) to any Soviet
officials or their attorneys for the settling of estates of decedents from
Baltic States dying in the U.S. The
Surrogate’s Court found this sufficient to declare the Soviet power of attorney
invalid as well as the notice of appearance by the New York attorneys
representing the "Iniurcolleguia."
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