Matter of De Camaret

2007 NY Slip Op 34619(U)

Opinion

Matter of De Camaret 2007 NY Slip Op 34619(U)

November 9, 2007

Surrogate's Court, New York County Docket Number: Index No. 2807/2001 Judge: Roth, S.

Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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NOV 1 5 2007

SURROGATE'S COURT : NEW YORK COUNTY ------------------- ------------------- ---x Probate Proceeding, Will of

FRANCINE MEYER DE CAMARET, File No. 2807/2001 a/k/a FRANCINE MEYER,

Deceased.

------------------- ------------------- ---x

R O T H , S .

CJ

·

Incident to this contested probate procee d ing · the e·..f~--te in ~

of Francine Meyer, proponent has moved to dismiss the claim of

decedent's estranged son, Patrick Gerschel, to enforce his

alleged heirship rights under the laws of France (Civil Code

Articles 724 and 913-930). The issue is whether decedent was

domiciled in France at the time of her death.

Mrs. Meyer was 77 years old when she died on July 2 8, 2001

i n the condominium she owned in Manhattan. She was survived by

three children, Marianne Gerschel, Laurent Gerschel and claimant.

Decedent left five testamentary instruments: a will and codicil

disposing of her property in Bermuda, and a will and two codicils

disposing of her property in the United States.

In the Bermuda will, dated June 25, 1988, decedent stat e d

that she resided at "St. James Court, Unit 601, Hamilton Parish

in the Islands of Bermuda" and left her Bermuda property in trust

for the Emerald Foundation, a New York charity she had

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established to support medical research in the area of incurable

diseases. In the American will dated April 20, 2000, testatrix

stated that she was "domiciled and residing at 601 St. James

Court, Flatts Village, Hamilton Parish, Bermuda", disposed of her

property in this Country to the Emerald Foundation. Preliminary

letters issued to the three named executors on August 9, 2001.

Mrs. Meyer's estranged son, Patrick, whom she had not seen

in 25 years, was the only one of her three children to object to

probate of the American will in a proceeding that is still

unresolved. In addition, pursuant to Articles 724 and 913-930 of

the French Civil Code which limit the right of a domiciliary to

disinherit children through lifetime gift or by will, Patrick (a

resident of New York), brought a proceeding in Supreme Court, New

York County to recover his alleged forced heirship share from the

beneficiaries of various gifts made by decedent during her

lifetime. Such proceeding was transferred to this court as it

relates to the affairs of decedent (Matter of Piccione, 57 NY2d

278). The property involved in the claim consists of gifts

totalling more than 15 million dollars that Mrs. Meyer made to a

charity and various people as well as gifts in excess of 17

million dollars that she made to the Emerald Foundation.

It is noted that claimant does not seek a share of the

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I

se New

prop erty passi ng unde r the Amer ican will proba bly becau y direc ts

York law clear ly provi des that when a Frenc h domi ciliar ned by its

that her will be propo unded in this State and gover (Matt er of

laws, the force d heirs hip laws of Franc e do not apply

\ Renar d, 108 Misc. 2d 31, aff'd 85 AD2d 501, aff'd 56 NY2d 973).

defin ed

\ We turn now to the law gover ning domi cile which is I to which a perso n

\ as "A fixed , perm anent and princ ipal home n" (SCPA

where ver temp orari ly locat ed alway s inten ds to retur

103[1 5]). Our high est court has held that a perso n may have more until a

than one resid ence but only one domi cile that conti nues terial ,

new domi cile is acqu ired and that "[m]o tives are imma

excep t as they indic ate inten tion. A chang e of domi cile may be

h or

made throu gh capri ce, whim or fancy , for busin ess, healt of laws

pleas ure, to secur e a chang e of clima te, or a chang e there is

(emph asis added ), or for any reaso n whate ver, provi ded ire

an absol ute and fixed inten tion to aband on one and acqu the

anoth er and the acts of the perso n affec ted confi rm

inten tion. " (Matt er of Newco mb, 192 NY 238, 251).

born in

The unco ntest ed facts estab lish that Mrs. Meye r was mat, until

Franc e where she lived with her husba nd, a Frenc h diplo cile to

somet ime in the mid-1 970's when she chang ed her domi

Switz erlan d. After some 20 years , she sold her Swiss home and

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, I y . I

I surre nder ed her Swis s resid ence perm it. In 1997 , she boug ht a

delib erate ly

five- bedr oom cond omin ium in Berm uda and clea rly and there .

took the step s nece ssary to esta blish her domi cile ifica te

In Janu ary 1998 , the Berm uda gove rnme nt issue d a cert

uda and stati ng

\I gran ting perm issio n to dece dent to resid e in Berm

her resid ence ther e. As she rema ined a citiz en of Fran ce, she

I

1, 2000

\ appl ied for a pass port whic h was issue d on Febr uary \ I listi ng her Ham ilton Paris h Berm uda addr ess as her \I

\ "Dom icile /Res idenc e". In addi tion, the "Cer tific ate of

I \

matr icula tion and resid ency " dated Janu ary 9, 2004 issue d by the

Mrs. Meye r was

\ Frenc h Cons ul Gene ral in New York, cert ified that ! \

14, 1998 to

\ regis tered as a resid ent of Berm uda from Septe mber

Furth ermo re, all the docu ment s prep ared for \

Septe mber 14, 2001 .

\ I her inclu ding both the Amer ican and Berm uda will s, her powe r of \ \

uctio ns

attor ney, her heal th care proxy and her lette r of instr 2000 all

regar ding disp ositi on of her rema ins dated Dece mber 12, uda.

confi rm that she inten ded to be a dom icilia ry of Berm

For his part, claim ant conte nds that his moth er was 1998

domi ciled in Franc e becau se durin g the perio d from July, 27 days

throu gh July, 2001 she spen t 400 days in Franc e and only in Berm uda. She, howe ver, did not own or rent any home in Franc e

but rathe r staye d at hote ls or with frien ds. More over durin g

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t she spe nt 107 day s in per iod the pro of est abl ish es tha day s in the Un ited Sta tes o the r Eur ope an Co unt rie s and 574 th Ave nue con dom iniu m tha t she pre sum abl y in New Yor k at the 5 ree of the

bou ght in 198 6. Cla ima nt fur the r not es tha t the dec

Mrs . Me yer 's Ber mud a wil l to Sup rem e Cou rt of Ber mud a adm itti ng iled in the Uni ted Sta tes of pro bat e sta tes tha t she was "do mic hel p cla ima nt sin ce

i Am eric a." Suc h sta tem ent doe s not , how eve r, i i was dom icil ed in Ber mud a or, \ the iss ue is not wh eth er dec ede nt I

was a

for tha t ma tter , in the Uni ted Sta tes but whe the r she

not . Mrs . Mey er

I dom icil iar y of Fra nce whi ch, cle arl y, she was !

l

re alm ost 30 yea rs ago and \ had rel inq uis hed her dom icil e the

I i

inte nde d nev er to be a Fre nch dom icil iary aga in, and her int ent

\ is the con tro llin g fac tor .

Bas ed upo n all the fore goi ng, it is con clu ded tha t Mrs .

not , dom icil ed in Fra nce at her Mey er inte nde d not to be, and was

dea th.

s the ord er of the

Acc ord ing ly, thi s dec isio n con stit ute dis mis s the cla im of Pat rick cou rt gra ntin g pro pon ent 's mot ion to

Ger sch el. I'

S U R R O G A T E

Dat ed: Nov emb er 9, 200 7

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