Plaintiff appeals from an order of the Surrogate's Court, New York County (Renee R. Roth, S.), entered on or about November 15, 2007, which granted the motion by defendants Heymann and Emerald Foundation to dismiss the complaint.
The opinion of the court was delivered by: Renwick, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
David B. Saxe, J.P., Eugene Nardelli, John T. Buckley, Karla Moskowitz Diane T. Renwick, JJ.
After Francine Meyer, a 77-year old French citizen, died in her Fifth Avenue condominium in New York City on July 28, 2001, her estranged son, Patrick A. Gerschel, who had not seen her for 25 five years, commenced this action, claiming forced heirship under French civil law. That law limits the right of a domiciliary of France to disinherit children through lifetime gifts or by will. Plaintiff seeks to recover forced heirship shares from several beneficiaries to whom Ms. Meyer gave lifetime gifts totaling more than $33 million. The main issue on this appeal involves whether New York would apply forced heirship rights under French law to a decedent's inter vivos disposition of New York property.
The following pertinent facts are not in dispute. Francine Meyer was born in France in 1924. Although she remained a French citizen throughout her life, she was truly a "citizen of the world." Ms. Meyer moved to Switzerland in the late 1960s or early 1970s, where she established her residence for more than 20 years. Later, she sold her Swiss home, surrendered her resident permit there, and in 1986 purchased a Fifth Avenue luxury condominium apartment in Manhattan.
Subsequently, around 1996, she also purchased a five-bedroom luxury condominium in Bermuda. In 1997, Ms. Meyer received a Bermuda certificate of residence. She also obtained a library card and maintained a personal bank account in Bermuda. Her French passport listed Bermuda as her place of residence. Similarly, a certificate issued by the French Consul General in New York indicated that Ms. Meyer was registered as a resident of Bermuda from September 1998 to September 2001.
During the last four years of her life, Ms. Meyer spent much less time in Bermuda than in Europe and the United States, splitting her time equally between New York and Europe. Most of her time in Europe was spent in France, although she neither owned nor rented a residence there. She also spent time in Switzerland, Sweden, Denmark, the United Kingdom, Italy and Germany.
Upon her death on July 28, 2001, decedent Meyer was survived by three children - Marianne Gerschel, Laurent Gerschel, and plaintiff Patrick A. Gerschel. Decedent left various testamentary instruments. She made a will and codicil disposing of her property in Bermuda. This Bermuda will, dated June 25, 1988, stated that she resided in Bermuda. She also made a separate will and two codicils disposing of her property in New York. In the New York will, dated April 20, 2000, she directed that her will be probated in this state and governed by its law, even though she was "domiciled and residing" in Bermuda. In both wills, with the exception of a few specific bequests, decedent left her property in trust for the Emerald Foundation, a New York charity she had established to support medical research.
On March 16, 2006, plaintiff, a resident of New York, commenced this action pursuant to Articles 724 and 913-930 of the French Civil Code limiting the right of a domiciliary of France to disinherit children through lifetime gifts or by will*fn1. He seeks to recover his alleged forced heirship share from the beneficiaries of various gifts made by decedent during her lifetime*fn2. The property involved in the claim consists of gifts totaling more than $15 million that Ms. Meyer made to a charity and various individuals, as well as gifts in excess of $17 million that she made to the Emerald Foundation. The complaint alleges that at the time of her death, decedent was a citizen and domiciliary of France, and that applicable French forced heirship principles required decedent to leave 75% of her "augmented estate" to her three children but she did not do so. The complaint further alleges that French law permits "disadvantaged" heirs to bring an action to recover from those who received gifts or other gratuitous transfers to the extent that these transfers encroached upon the forced heirship share.
In lieu of an answer, the Heymann and Emerald defendants moved for a dismissal of the complaint pursuant to CPLR 3211(a)(1),(2),(5) and (7), arguing that this case does not invoke French forced heirship claims because plaintiff cannot establish that his mother was a French domiciliary at the time of her death. They further noted that a French forced heirship claim is created by statute, and for purposes of the limitations period for commencing such an action, the accrual date is the date of the decedent's death. Finally, they argued that under French forced heirship laws, plaintiff can directly seek redress against the recipient of an inter vivos gift only if the value of the testamentary disposition is insufficient to satisfy his forced heirship claim. Surrogate's Court granted these defendants' motion to dismiss solely upon the finding that the documentary evidence conclusively established that decedent was not a domiciliary of France at the time of her demise. We affirm for the reason stated, as well as other grounds establishing that the action is untenable as a matter of law.
The parties in this case assumed incorrectly that inter vivos transfers made in New York by a French domiciliary are subject to French forced heirship laws. The Surrogate's Court appears to have operated under this assumption as well, dismissing solely on the ground that the decedent was not domiciled in France at the time of her death. Nevertheless, forced heirship provisions of a civil law jurisdiction like France are inapplicable to inter vivos transfers of property executed in New York, irrespective of whether the transferor's domicile was New York or France. This is because the validity and effect of ...