IN RE: the ESTATE OF Elizabeth CARMODY

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Surrogate's Court, Bronx County.

IN RE: the ESTATE OF Elizabeth CARMODY, Deceased.

Decided: September 26, 2006

John B. Cosgrove, Esq., for Theresa Lynch, petitioner.

The issue presented in this uncontested probate proceeding is whether an authenticated copy of the will of a decedent who died domiciled in Bronx County may be admitted to original probate by this court where the original instrument cannot be produced because it has been admitted to probate in Ireland, where it was executed, and that jurisdiction will not release it.   Under the facts of this case, the authenticated copy is entitled to be admitted to original probate by this court.

The decedent died domiciled in Bronx County on January 22, 2005.   The propounded instrument, dated May 12, 2003, was executed and filed for probate in Ireland.   By decree entered June 7, 2005, the High Court of Ireland granted authority to act as personal representative to the petitioner herein, the nominated executrix who is the decedent's cousin and a domiciliary of Ireland.   The petitioner now requests, pursuant to SCPA 707(1)(c), the issuance of letters jointly to herself and to a sister of the decedent who is a New York resident.

The petitioner submitted the affidavits of the two attesting witnesses indicating that the will was duly executed, along with a document executed by an officer of the High Court of Ireland, stating that the original will would not be released and would be retained permanently on file, pursuant to the practice of that court.   The decree issued by the High Court of Ireland affirmatively states that the decedent resided in New York at her death.

 The will of a person who dies domiciled in New York may be admitted to original probate in this jurisdiction even though the original instrument has been admitted to probate in another country and that jurisdiction will not release the original instrument (Matter of Keller, 32 Misc.2d 1041, 223 N.Y.S.2d 878 [1962];  see also Matter of Rosenak, 184 Misc.2d 807, 710 N.Y.S.2d 813 [2000] ).   In Keller, the court held that the will could be admitted to original probate upon production of a duly authenticated copy of the will and such proof as satisfies the court that the will is entitled to be admitted to probate (SCPA 1408).

 Here, the propounded instrument is entitled to be admitted to probate if it was executed and attested in accordance with either the laws of Ireland, the jurisdiction in which it was executed, or the laws of New York (EPTL 3-5.1 [c] ).  The decree of the High Court of Ireland establishes that the will was executed and attested in accordance with the laws of that jurisdiction and the affidavits of the attesting witnesses establish that the will was executed in accordance with the laws of this jurisdiction.   Consequently, the authenticated copy of the will is entitled to be admitted to original probate in this jurisdiction.   Letters of administration c.t.a. shall issue to the petitioner and the decedent's sister upon their filing a bond in the penal sum of $240,000 and duly qualifying according to law.

Decree signed.

LEE L. HOLZMAN, J.