Decision and Orders signed: January 23, 2025 Surrogate Mella
ESTATE OF JOERG CONRAD a/k/a JORG CONRAD, Deceased (24-2517) — This is an uncontested ancillary probate petition pursuant to SCPA Article 16 in the estate of Joerg Conrad, a German domiciliary. Petitioner Kenneth A. Kanfer, Esq., attorney for the “sole heir and all beneficiaries,” seeks to probate a German inheritance contract dated October 23, 2019 (Inheritance Contract), and to be granted Ancillary Letters of Administration c.t.a.. In support of his petition, Kanfer has filed a copy of the Inheritance Contract with a certified translation, a copy of the “minutes” of a German court proceeding in which the Inheritance Contract was “opened” with a certified translation of the same, and the written consents to the relief requested of all the heirs mentioned in the Inheritance Contract. Petitioner has also filed the affidavit of an attorney and notary licensed in Germany. In his affidavit, the attorney explains that the type of inheritance contract at issue here, i.e. one executed by a decedent and his spouse, which provides for the disposition of the assets at death, can be an alternative to a will under German law. After the contract is notarized, however, the original must be submitted to the court or kept in the notary’s custody. According to the attorney, this Inheritance Contract meets the criteria for consideration as a valid alternative to a will under German law because it was properly notarized and filed with the competent German court and, after our decedent’s death, the proper procedure was followed by the German court to “open” all of decedent’s wills and inheritance contracts, which revealed that this Inheritance Contract was the most recent “and therefore [decedent's] sole authoritative testamentary disposition.” The Court of Appeals has equated a German inheritance contract with a will for the purpose of probate, stating: “[I]f the instrument is not to have any operation until after death, then it is a will” (Matter of Diez, 50 NY 88, 93 [1872]).1 The instrument’s designation as a “contract” was not found by the Court to be “conclusive as to the character of the instrument” (id. at 92). Like the Inheritance Contract here, the instrument in Diez functioned as a mutual will between spouses in that the spouses devised reciprocally to each other, which led the Court to find that it could be probated as would be a will (id. at 94). Under these circumstances, the court concludes that the Inheritance Contract functions as the equivalent of a will for the purpose of admission to probate. The court is also satisfied that the instrument “has been established” in accordance with the law of Germany (SCPA 1602[1]). Accordingly, the instrument has been admitted to probate in New York and Ancillary Letters of Administration c.t.a. shall issue to Petitioner, upon his duly qualifying according to law. Ancillary Decree signed. Dated: January 23, 2025 1. Courts from other jurisdictions have also treated German inheritance contracts as testamentary instruments (see Wach v. Byrne, 910 F Supp 2d 162, 167 [DDC 2012]) [recognizing a contract of inheritance as a German testamentary instrument]; Studiengesellschaft Kohle mbH v. Novamont Corp., 518 F Supp 557, 559 [SDNY 1981] revd in part on other grounds 704 F2d 48 [1983]). Scholars and commentators have noted the same (see Pedro A. Malavet, The Non-Adversarial, Extra-Judicial Search for Legality and Truth, 16 Wis lnt’l LJ 1 n 162 [1997]; 2 International Estate Planning §21.07 [2024]).
