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Court Determines Jurisdiction Issue regarding a Will


The petitioner is the surviving spouse of the deceased who died a resident in the State of Florida. The deceased man’s Last Will and Testament was executed in the State of Florida and admitted for validation by the Circuit Court of the County of Lee, State of Florida. The will specifically devises the deceased man’s interest in the real property in the Town of East Greenbush Rensselaer County, State of New York, to his former wife and the remainder of his property to his two children. The deceased man’s son is the executor nominated in the will and he was appointed by the Florida Circuit Court. The executor, thereafter, petitioned the Court for supplementary probate of the deceased man’s will and it was subsequently admitted for validation.

All of the deceased man’s assets were located in the State of Florida except for the real property located in the Town of East Greenbush. The petitioner has exercised her elective share under the Florida law since the deceased man’s last will made no provisions for the petitioner spouse. The Florida law does not take into account real property not located in Florida so the petitioner filed a right of election against the deceased man’s New York State real property and has commenced the proceeding for the Court to determine the validity of her right of election.
A New York Probate Lawyer said the deceased man’s former wife has appeared in the will contest proceeding by her attorney and has joined with the executor of the deceased man’s property in denying that the petitioner can exercise a right of election against the East Greenbush property.

The Court’s analysis of the proceeding started with the Estate’s Power and Trust Law which states that the right of election granted by the section of the law is not available to the spouse of a deceased who was not a resident of the state at the time of death, unless such deceased elects to have the disposition of his property situated in the state governed by the laws of the state.

New York City Probate Lawyers said it is clear from a reading of deceased man’s will that there are no provisions wherein he elects to have the disposition of his property situated in New York State governed by New York State law.

The will before the Court does not contain any provisions of the Estate’s Powers and Trust Law stating that deceased man’s East Greenbush property should be disposed of pursuant to New York State law. In the absence of such declaration, there is no need for the Court to engage in conflicts of laws analysis pursuant to the Estate’s Powers and Trust Law.

The petitioner argues that it is unfair to deny a spouse the right to elect against New York State real property owned by her non-resident spouse who has disinherited her. The petitioner points out that denial of the right to elect leads to the absurd result that if a spouse wants to disinherit his spouse from receiving any property located in New York, then he can move out of New York State, establish residence in another state, and execute a will in the other state disinheriting a spouse so that she would not have any rights against the New York property. The result, however unfortunate, is precisely what New York State law allows. Westchester County Probate Lawyers said a Section of the Estate’s Powers and Trust Law quite clearly indicates that a resident of New York can defeat any rights his spouse might anticipate having under the New York State right of election by simply changing his residence at any time prior to death.

In view of the extensive recent amendments to the Estate’s Powers and Trust Law, it must be assumed that the Legislature intended the said results to occur. The newly adopted Section which applies to deceased persons who died on or after September 1, 1992 is exactly the same and applies to deceased persons who died prior to September 1, 1992. Accordingly, the petitioner’s notice of election is deemed invalid and the petition to determine the validity of the right of election is dismissed.

Disputes over properties and residency seem to always go hand-in-hand. Different States and different countries have distinct laws. In times of legal disputes, you can consult a skilled lawyer at Stephen Bilkis and Associates. The dependable team of lawyers will guide you all throughout your journey in solving your legal issues.

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