Presented to the court is the motion by Thomas Holahan, Sr., the executor of the estate of decedent Vincent Hart and trustee of the Vincent Hart Living Trust dated July 7, 2004 (hereafter "petitioner") to determine whether this court or the Superior Court of Aguada, Puerto Rico is the appropriate forum to adjudicate the controversy between petitioner and respondent Maria Bonet (hereafter "respondent" or "Bonet") and related relief. In its decision and order (Decision Nos. 27220 and 27221) dated March 31, 2011, this court declined to address the jurisdictional questions at that time as proceedings addressing the underlying issues were wending their way through the appellate courts in Puerto Rico. This motion results from a judgment issued by the Supreme Court of the Commonwealth of Puerto Rico dated April 7, 2011, wherein that court deferred to this court the issue of whether the underlying claims, which involve New York law, should be adjudicated in Puerto Rico or in New York Surrogate's Court.

Petitioner prefers the foreign forum where the trial court has already made substantial [*2]findings of fact, while respondent prefers the New York forum where the decedent's will was probated and where the parties reside. The court notes that Bonet commenced a proceeding in Puerto Rico asserting a community property right with regard to certain assets of the decedent. The community property claim was strongly opposed by the petitioner and found to be frivolous by the trial court in Puerto Rico. Bonet moved for and was granted permission to withdraw the proceeding without prejudice to renew.

Although the case has been a procedural morass, the substantive issues are not difficult of adjudication. Succinctly stated they are: (1) did Bonet violate the terms of the no-contest clause in the lifetime trust, thereby forfeiting her rights in the trust; and (2) did she thereby also forfeit her rights under the decedent's will, executed the same day as the trust, but which does not contain a no-contest clause?

Although the April 7, 2011 judgment of the Supreme Court of Puerto Rico is only two pages long and offers no insight into the Court's thinking, a 28-page concurring opinion written by Hon. Anabelle Rodriguez-Rodriguez, which was joined in by the Chief Justice and another associate justice, reveals the thinking of at least these three justices regarding whether Puerto Rico is the appropriate forum to decide these issues. Beginning on p. 26 of the translation of the concurring opinion, Justice Rodriguez-Rodriquez writes, "[i]t is evident that our courts are not adequate to deduce whether the contest clause contained in the trust has been breached. The courts of New York are the most appropriate due to the fact that all the trust connections are located in that jurisdiction. Additionally, it will be much more convenient for the parties to continue their lawsuit in said state since it is their place of residence, it has all the sources of evidence, and the judgment issued can be executed on the same date in the same court— it would be more expensive to try to execute in New York a judgment issued by the Courts of Puerto Rico...In view of the foregoing, we conclude that the courts of Puerto Rico are clearly inappropriate to evaluate the rights of the parties to the living trust created by Mr. Hart. The courts of the State of New York are the proper courts to resolve said dispute."

Balancing the equities, the court concludes that it is best that a New York court determine New York law with respect to a New York will and a New York trust. This court acknowledges the deference demonstrated by Puerto Rico's highest court and accordingly agrees to determine all issues related to the estate and trust, except for the community property claim and the claim for costs, expenses, or damages relating to such claim. The request for determination of related procedural issues is denied without prejudice, except that these matters are set down for conference before a member of the court's law department on May 1, 2013 at 10:30 a.m. to chart the litigation going forward.

This is the decision and order of the court and no further order need be presented.

Dated: April 12, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court