Case of the Day: Estate of Aquino

The case of the day is Estate of Aquino (Mount Vernon N.Y. City Ct. 2017). Aquino married in New York in 1986 and died in 2011, survived by a wife and seven children. In 2012, the wife petitioned the court for letters of administration allowing her to administer his estate, which the court granted. The wife, though, had given notice of her petition to only three of the children. In 2014, one of the sons who had not received notice sought to revoke the letters of administration and to have himself appointed as administrator on the grounds that his father and his father’s wife were divorced in 1993 in the Dominican Republic.

The wife moved for summary judgment. She offered her affidavit, averring that she and her husband had remained married. The son offered a judgment of divorce, authenticated with an apostille, from a Dominican court, with a certified English translation. The wife responded with some evidence that tended to show that the Dominican judgment was not authentic.

At first glance, this would be a classic question of fact that could not be resolved on summary judgment, and you can imagine a post pointing out that the apostille authenticates a document but not conclusively. But the court found a way around the problem. It was undisputed that the wife had never traveled to the Dominican Republic and that if the husband had obtained a divorce as the son claimed, he had done so ex parte. Under New York law, “a foreign divorce decree obtained on the ex parte petition of a spouse present but not domiciled in the foreign country will not be recognized in New York where the other nonresident spouse does not appear and is not served with process.” So the wife was entitled to summary judgment despite the son’s divorce judgment with apostille attached.

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  1. 2013/0177(NLE) – 10/03/2016 Final act

    PURPOSE: to authorise Austria and Malta to accede to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters in the interest of the European Union.

    NON-LEGISLATIVE ACT: Council Decision (EU) 2016/414 authorising the Republic of Austria to sign and ratify, and Malta to accede to, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, in the interest of the European Union.

    CONTENT: under this Council Decision, the Council, following the European Parliaments consent, authorised Austria and Malta to accede to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters in the interest of the European Union.

    The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters establishes a system whereby these documents can be served in another signatory state. It simplifies the methods of transmission of judicial and extrajudicial documents between the Contracting States. It thus facilitates judicial cooperation in cross-border civil and commercial litigation.

    The Convention does not allow for participation by regional economic integration organisations such as the Union. As a result, the Union is not in a position to accede to the Convention. Moreover, many countries, including the Member States except Austria and Malta, are parties to the Convention. Austria and Malta have expressed their interest in becoming parties to the Convention. It is in the interest of the Union that all Member States are parties to the Convention.

    Austria shall take the necessary steps to deposit its instrument of ratification of the Convention with the Ministry of Foreign Affairs of the Kingdom of the Netherlands within a reasonable time and at the latest by 31 December 017.

    After this Decision takes effect Malta shall notify the Ministry of Foreign Affairs of the Netherlands of the date on which the Convention will become applicable to Malta.

    Ireland and the United Kingdom shall participate in the adoption and the application of this Decision while Denmark shall not take part nor shall it be bound by it or subject to its application.

    ENTRY INTO FORCE: 23.3.2016.

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