Matter of Zocchi

[*1] Matter of Zocchi 2004 NY Slip Op 51774(U) Decided on December 14, 2004 Surrogate's Court, Westchester County Scarpino, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 14, 2004
Surrogate's Court, Westchester County

In the Matter of the Application of Ernest Zocchi, as Trustee of a Trust under ARTICLE SIXTH of the Last Will and Testament of CLISI M. ZOCCHI, Deceased



262/2004



John J. Hughes, Esq.

Bertine, Hufnagel, Headley,

Zeltner Drummond & Dohn, LLP

Attorneys for Petitioner

700 White Plains Road

Scarsdale, NY 10583

Elizabeth A. Roosa, Esq.

Levine, Hofstetter & Frangk

Attorneys for John Zocchi, Lawrence Zocchi and George Zocchi

316 Main Street

Poughkeepsie, NY 12601

George Hunter Roberts, Esq.

Covey, Roberts, Buchanan & Carmody-Roberts, LLP Attorneys for Respondent Kara Lynn Tavolacci

200 Katonah Avenue

Katonah, NY 10536

Anthony A. Scarpino, J.

In this proceeding seeking a construction and determination of the effect of ARTICLE SIXTH of the Last Will and Testament of Clisi M. Zocchi (Decedent), petitioner is the trustee of a trust created under that article. Petitioner requests that the court direct the distribution of the remaining assets of the trust to Decedent's surviving sons, in equal shares. Kara Lyn Tavolacci, f/k/a/ Kara Lyn Zocchi (Respondent), has filed an answer to the petition, asserting that Florida law controls this proceeding and that she, as Decedent's grandchild, should receive the one-fourth of the trust remainder to which her late father would have been entitled. The parties have submitted memoranda and agreed that the court determine the petition on the papers submitted.

The decedent, who passed away on September 10, 1991, maintained a residence in New York but was domiciled in Broward County, Florida. His will, dated November 27, 1985, was drafted in New York, by a New York attorney, and executed in New York. That will was admitted to probate in Broward County, Florida on June 22, 1992.

Decedent was survived by a spouse, Phyllis Zocchi, and three sons: John, George and Lawrence. A fourth son named Raymond had predeceased on November 14, 1978, leaving as his only child an adopted daughter, Respondent Kara Lyn Zocchi. Raymond's spouse remarried and, on May 19, 1982, Respondent was adopted again, this time by her step-father.

Article SIXTH of the will provided for the establishment of a marital disclaimer trust, the income payable to his spouse, Phyllis, for life and, on her death, the remainder "to my then living issue in equal shares, per stirpes". Phyllis made a qualified disclaimer of 200 shares of 305 Clisi Realty Corporation (the Corporation), a domestic company located in Westchester County, New York, and the shares were placed into the trust. The assets of the Corporation are rental properties located in Westchester and Dutchess County. Phyllis died October 18, 2002, and Petitioner, as trustee, is required to distribute the shares [*2]pursuant to the terms of the will. All of the parties, except George Zocchi, are residents of New York, and all but Respondent have submitted waivers and consented to the distribution of the shares to Decedent's three living sons.

Essentially, Petitioner contends that New York law applies to this trust, which was established in a will drawn and executed in New York, funded with assets located in New York and administered from New York. He alleges that this proceeding is one for a construction and, based upon EPTL 3-5.1(e), interpretation must be made in accordance with the laws of the jurisdiction where the testator was domiciled when the will was executed. New York law is applicable to this will, Petitioner argues, and that law bars Respondent from membership in the class of "living issue". She was adopted out of the Decedent's familial line in 1982, before the will was drawn in 1985. New York law then in effect did not include adopted out children in the class of "issue" [FN1].

Respondent contends, however, that Florida law should control, based upon the location of probate and Decedent's domicile at death, citing EPTL 3-5.1(b)(2). She asserts Florida law provides that an adopted person is regarded as a lineal descendant of the adopting parent for all purposes, and the subsequent adoption of that child by a step-parent does not terminate the child's relationship with the family of her deceased parent (Florida Statutes §§ 63.172; 732.108). She claims that she is, therefore, included in the class of "issue" as the child of her deceased father (Florida Statutes § 732.608), based upon Florida law (Lewis v Green, 389 So2d 235 [1980]).

Both parties agree that the applicable choice of law statute is EPTL 3-5.1, and that the trust remainder constitutes personal property. They disagree, however, upon which subsection governs and which state's law applies as a consequence. Petitioner asserts EPTL 3-5.1[e], which provides as follows, is the controlling law: "Interpretation of a testamentary disposition of personal property shall be made in accordance with the local law of the jurisdiction in which the testator was domiciled at the time the will was executed".

Respondent alleges that EPTL 3-5.1(b)(2) applies: "The intrinsic validity, effect, revocation or alteration of a testamentary disposition of personal property, and the manner in which such property devolves when not disposed of by will, are determined by the law of the jurisdiction in which the decedent was domiciled at death".

The court must therefore determine whether, according to the statutory definition, the issue here is one of interpretation or a declaration of the effect of the substantive law upon the facts of this case. EPTL 3-5.1[a] defines the words"effect" and "interpretation" as used in the statute. "Interpretation relates to the procedure of applying the law of a [*3]jurisdiction to determine the meaning of language employed by the testator where his intention is not otherwise ascertainable" (EPTL 3-5.1[a][6]). "Effect relates to the legal consequences attributed under the law of a jurisdiction to a valid testamentary disposition" (EPTL 3-5.1[a][5]).

The court in Matter of Kadjar (200 Misc 268 [1950], affd 279 AD 1008) commented: "In applying the rules for construction of a will, confusion sometimes results from a failure to distinguish between a mere interpretation of the text and a pronouncement as to the legal effect of a provision. "Interpretation is an effort to fix in fact the meaning of the words used; the legal effect of the words is the creation of interests and rights by the mere operation of law, without regard to the intention of the words" [2 Beale, on The Conflict of Laws, § 2.51.1, p 972])". (Id at 270).

The problem at hand could be considered one of interpretation, in that the court is asked to determine whether the testator intended his adopted out granddaughter to be included in the class of "issue" (see Matter of Kadjar, 200 Misc at 270). However, interpreting the testator's intentions is not the primary focus here. This Court has been asked to determine the effect of the laws concerning the status of adopted out children upon Respondent's inheritance rights .

The Fifth Report of the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, (Leg Doc. 1966, No. 19, Appendix L-7, Report 8.2 1A) cited the spousal right of election and the anti-lapse statute as examples of questions of "effect" subject to EPTL 3-5.1(a)(5) and (b)(2). EPTL 3-5.1(b)(2) has been held to control the choice of law in questions of spousal abandonment, the inclusion of certain assets in the estate, and the inheritance rights of a non-marital child (see Matter of Sexcius, NYLJ Dec. 18, 2001, at 18, col. 4).

The jurisdictional directive of EPTL 3-5.1(b)(2) includes not only the effect, but also the "revocation or alteration of a testamentary disposition of personal property". Because EPTL 3-5.1(f) specifically addresses the effectiveness of a revocation by physical destruction, the revocation or alteration referred to in EPTL 3-5.1(b)(2) is that which results from the operation of law, such as divorce or the birth of a child after the execution of the will (see New York Estate Administration, Turano and Radigan, § 19.05[c], at p 640).

The legislative revocation or alteration of the Respondent's inheritance rights stands at the core of this case. That revocation, together with the need to consider the legal consequences of the substantiative law of adoption, places this case within the ambit of EPTL 3-5.1(a)(5) and (b)(2). Therefore, EPTL 3-5.1(b)(2) controls, and the applicable law is that of Florida, the Decedent's domicile at the time of his death.

The Florida law in effect at the time of the testator's death in 1991, and at the time of the termination of the trust in 2002, includes adopted persons in the lineal descent of all members of the adopting parent's family, and excludes them from the line of inheritance of the natural or prior adoptive parent's family (Florida Statutes §§ 63.172, 732.108[1]; see Will of Martell, 457 So 2d 1064 [1984]; Green v Quincy State Bank, 368 So. 2d 451 [1979]).

The statute also contains three exceptions to the exclusion, which apply to adoption by the spouse of a natural parent (Florida Statutes § 732.108[1][a]), adoption by a natural [*4]parent's spouse after the death of the other parent (Florida Statutes § 732.108[1][b]), and adoption by a close relative (Florida Statutes § 732.108[1][c]. None of these intra-family adoptions terminates the right of the child to inherit from the family of the deceased natural parent (Estate of Kanevsky, 506 So 2d 1101, 1102 [1987]).

Respondent's situation corresponds with the exception listed in Florida Statutes § 732.108(1)(b), so that her adoption by her step-father "...has no effect on the relationship between the child and the family of the deceased natural parent" (Florida Statutes § 732.108[1][b]). Therefore, Respondent is entitled to share in Decedent's estate as a member of the class defined in Article SIXTH as Decedent's "then living issue in equal shares, per stirpes" (see Florida Statutes § 732.608; Green v Quincy State Bank, 368 So. 2d at 452-453).

Accordingly, Petitioner is directed to distribute the remainder of the Article SIXTH trust in accordance with this opinion.Settle decree.

Dated: White Plains, NY

December 14 , 2004

HON. ANTHONY A. SCARPINO, JR. Westchester County Surrogate Footnotes

Footnote 1: Had the will been executed a year later, Respondent would have been entitled to inherit under New York law as well, pursuant to EPTL § 2.13 and Domestic Relations Law § 117[2][b], enacted in response to the holding in Matter of Best, (66 NY2d 151 [1985]).