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Court Decides Will Jurisdiction Issue


An 89-year old woman had retired and had been living in Florida. But, she executed a will in New York in front of witnesses who were from New York. Seven months after executing her will, she died in New York and was buried in New York.

The will contained about 50 legacies and the establishment of several trusts. Although the will was executed in New York, it was drafted by a lawyer from Florida. The will named four executors: one of her sons who lives in Arizona, her accountant who lives in Florida, a niece by marriage who lives in New York and the son of the niece who lives in New Hampshire. A New York Probate Lawyer said the will did not specifically include her desire to have her will probated or her estate administered in New York or under its laws.

The estate of the testator consisted of 100% ownership in a corporation in New York and her residence (house and lot) in Westchester County. Her estate is valued at $28,000,000.
In December 2004, probate proceedings were already begun in Florida. The testator’s son, her accountant and her niece by marriage and the niece’s son all applied to be executors of the estate. A New York Probate Lawyer said the grandson of the testator also filed an objection to the probate of the will challenging certain legacies and trusts for vagueness, indefiniteness and for undue influence. A week later, the Florida Probate Court issued preliminary letters testamentary to the son and to the accountant for them to make an inventory of the assets and pay administration expenses.

Notwithstanding the existing probate proceeding in Florida, the niece by marriage and the niece’s son both filed probate proceedings in New York. They claim that the Surrogate Court of New York has a better right to hear the probate petition since the will was executed in New York before witnesses who reside in New York; the testator died and was buried in New York; the assets of the estate are all in New York; some beneficiaries under the will are located in New York; and more importantly, the probate laws of Florida discriminate against the niece by marriage and the niece’s son. They claim that they were not allowed to act as executors by the Florida probate court because they were not related by blood to the testator and they are not Florida residents.

The only question before the Supreme Court is whether or not the Surrogate’s Court of New York should take jurisdiction over this petition for probate.

The Supreme Court explained that the Surrogate Court of New York has jurisdiction to admit to original probate a will executed by a non-resident of New York if at the time of the death, the properties of the estate are physically located in New York. According to a Staten Island Probate Lawyer, when the state where the testator was a resident has already admitted the will into probate, the Surrogate’s Court of New York cannot admit that same will into probate except if the Surrogate’s Court of New York is satisfied that the probate in another state is expensive, inconvenient or impossible; where the testator has directed in her will that her will be probated in New York; and where the laws of the state where the testator was a resident discriminates against residents of New York and prevents them from acting as fiduciaries (executors) or beneficiaries.

The Supreme Court resolves that the Surrogate’s Court’s acceptance of an application for original probate of a will of a non-resident of New York is entirely discretionary on the part of the Surrogate’s Court. That is to say, the Surrogate’s Court is free to decide, at its discretion, whether to proceed with the probate proceedings.

But the Supreme Court also ruled that in this case, New York should not hear the probate application on the grounds asserted by the niece by marriage and the niece’s son. The Court ruled that even if they are denied the nomination as executors, there are still two executors named in the will who are allowed to be named as executors. Also, the Florida Probate Court has already entertained a probate proceeding; objections have been filed; and discovery demands have already been filed in Florida. Suffolk County Probate Lawyers said it would be too costly and too cumbersome to all the parties to litigate these same objections in two courts. An anomalous condition will result if the Florida Court and the New York court will have two different findings. Most importantly, the niece by marriage and the niece’s son have not been able to demonstrate that they have been denied by the Florida Court of their right to defend against the objections filed in Florida.

For these reasons, the New York Court declined to hear the petition for probate of the will.
Admitting a will in probate requires meticulous presentation of evidence. A probate Lawyer is trained to present all necessary facts on the due execution of the will, on the testamentary capacity of the testator and lack of fraud and undue influence. The legal team at Stephen Bilkis and Associates is ready to assist you in presenting the evidence to ensure that a will is admitted to probate. Come for a free consultation at any of the offices of Stephen Bilkis and Associates in the New York area.

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