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Court Decides Question of Domicile of Testator

A woman who lived for thirty years with her niece in New York executed a will sometime on February 5, 1955. In will, she distributed her estate to her son who was a resident of Wayne County and her niece who was a resident of New York County. The woman just before her death stayed with her son at his home in Wayne County.

He filed a petition for probate in Wayne County. The niece who was a legatee in the will filed an objection to the probate of the will. Her objection centers on whether or not the Surrogate’s Court of Wayne County has jurisdiction over the probate petition seeing as the domicile of the testator, her aunt was New York.

Before deciding on the issue of whether or not the Surrogate’s Court of Wayne County has jurisdiction over this probate proceeding, the Court decided on the question of whether or not the niece who filed the objection is an interested party who alone can filed objections to a probate proceeding.

A New York Probate Lawyer said the only questions before the Court are: whether or not the niece has standing to file an objection to the probate of the woman’s will; and whether or not the Surrogate’s Court of Wayne County has jurisdiction to hear the probate petition.

The Court held that the niece has standing to file an objection in this probate proceeding. She is a legatee or a distributee of the will and as such, she has an interest in the probate of the will: if the will is denied probate, she will suffer the loss of the legacy that was left to her by her aunt in the will.

The next question is whether or not the woman was a resident of Wayne County (seeing as she died there). If the Court finds that she is a resident of Wayne County then the will can be probated in Wayne County; but if the Court finds that the woman is a resident of another county at the time of her death then the will must be probated in the county where she was domiciled at the time of her death.

The Court also held that in determining the domicile of a testator, it is not only necessary to determine the length of time that the testator lived in one particular place. It is also worth considering what the testator considered as her permanent home, or the place she will regularly return to after her travels to other places.

The son of the testator has presented testimonial evidence that the testator has expressed her desire to move nearer to her son and get her own place in Wayne County. However, Westchester County Probate Lawyers said the niece presented evidence that the testator has maintained an apartment in New York City her whole life until her death.

The Court ruled that for purposes of determining domicile or permanent residence, it is important to weight not only the expressed wishes of the testator but the totality of her declarations, her conduct and her manner of life including her connections, association and interests must be weighed to determine where she actually took up permanent residence.
The Court found that the witnesses presented by the son were not disinterested parties: they desire the probate of the will so that they can obtain the legacies that were provided for them in the will. The Court also found that the witnesses presented by the niece were not disinterested parties either. Suffolk County Probate Lawyers said the only person who was disinterested in the probate of the will was the witness who appeared in court after she was sent a subpoena. She showed reluctance to testify and yet she testified that the testator had indicated to her that she did not want to give up her apartment in New York City because she intended to return there.

What the Court found controlling was the fact that most of the testator’s interests were in the City of New York and she had never given up her apartment there. This is the best indication that she intended to return to New York City as this is her domicile.

The Court dismissed the probate petition on the ground of lack of jurisdiction as the testator was a domiciliary of New York City and not of Wayne County.

The first basic consideration in filing a probate petition is: the petition must be filed in the Surrogate’s Court in the county or state of the testator’s domicile. The question of domicile is a legal question that confers jurisdiction on a court. You need the advice and assistance of a New York Probate Lawyer to determine the domicile of a testator at the time of her death.

The New York City Probate Attorney will tell you that the issue of domicile affects the probate proceeding because it is the law of the testator’s domicile that will determine the laws which will be applied by the court to determine due execution and testamentary capacity. Call Stephen Bilkis and Associates today, ask to meet with any of their NY Probate Lawyers and make sure that you file the probate proceeding in the proper court. Speak with a NYC Probate lawyer from Stephen Bilkis and Associates to make sure your probate petition is not dismissed for lack of jurisdiction or wrong venue.

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