Posted On: June 29, 2013 by Stephen Bilkis

Court Determines How Residuary Bequest Shall Be Made

Two probate proceedings were brought before the court for resolution.

A New York Probate Lawyer said in the first case, the Court was required to determine the manner in which payment of the residuary bequest shall be made. As provided for under the will’s eleventh article, the residuary estate was bequeathed to a resident of Poland to be hers absolutely and forever. A provision followed to the effect that she would go to New York City to receive payment.

Here, the language requiring that the payment be made in New York City must be construed as a precatory provision in no manner affecting the absolute nature of the bequest made. As per written request, the executor may make payment of the said legacy by the appropriate transfer of the funds to the said legatee after 10 July 1962 when she shall have attained her majority, in the manner set forth by the Court in the case entitled Matter of Tybus' Will.

In the second case, the court was called to resolve a proceeding to probate the last will and testament of a certain woman, the decedent.

Sometime in 1898, the decedent was born in Odessa, Russia. In or about 1911, she emigrated to the United States and settled in Williamsburg, Brooklyn. Upon her marriage, she moved to 273 Beaumont Street in Manhattan Beach, Brooklyn. She lived at that address until 1989, when a series of medical problems arose, causing the decedent to shuttle back and forth between various health care institutions. On 6 December 1990, she died while a patient at a hospital in Manhattan, and with a last will and testament. By this time, the Manhattan Beach home had been sold, and prior to her final three-month-long hospitalization, the decedent had been residing in a Bronx County nursing home. Consequently, a probate proceeding was instituted in King’s County. Thereafter, a motion to transfer the proceeding to the Surrogate's Court of Bronx County was made.

Long Island Probate Lawyers said on 17 May 1991, the Surrogate's Court of Kings County issued an order denying the motion to transfer the proceeding to the Surrogate's Court of Bronx County. Thus, an appeal followed. At issue on the appeal is whether the decedent was, at the time of her death, a domiciliary of Brooklyn or the Bronx.

The appellate court affirmed the lower court’s order, with costs payable by the appellant personally.

Queens Probate Lawyers said that under the law, an existing domicile continues until a new one is acquired. It is incumbent upon the party seeking to prove a change of domicile to demonstrate such a change by clear and convincing evidence. To meet this burden, the movant must establish the decedent's intention to effect a change of domicile from her acts, statements, and conduct. The element of intent is essential. The question of whether there has been a change of domicile is a mixed question of fact and law and it frequently depends upon a variety of circumstances, which differ as widely as the peculiarities of individuals. In order to acquire a new domicile there must be a union of residence and intention.
Here, the record is silent as to whether the decedent intended to abandon her long-standing Brooklyn domicile, and whether she willingly entered the Hebrew Home for the Aged in the Bronx and sold her virtually lifelong Brooklyn home of her own free will remains unknown. Neither of her children's affidavits sheds any light on this question. In this regard, it is generally held that an incapacitated person's admission into a health-care facility does not cause a change of domicile if the incapacitated person is unable to express an intention to establish a new domicile. Clearly, the sale of the decedent’s residence to an unrelated third party while she was institutionalized with undisclosed illnesses prevented her from returning to her former residence. It did not preclude, however, health permitting, her return to the Manhattan Beach community she called home and with which she maintained strong spiritual and community ties. Absent any evidence of the decedent's intention to establish a new domicile in the Bronx, the denial of the motion to transfer the probate proceedings to that county was proper.
On the appellant's remaining contentions, the court found them unmeritorious.
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