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Court Determines Jurisdiction of Will between Florida and NY


A woman died in Florida on January 17, 2985. She had assets in Florida and New York. Her will was drafted and executed in New York under the supervision of her New York lawyer who is also the named executor in her will. He is the one who petitioned the Surrogate’s Court of New York for the probate of his client’s will.
The testator bequeathed to her siblings half of the estate and the remaining half was bequeathed to the legal heirs of the testator in accordance with the laws of descent and distribution of New York.

The testator’s lawyer at first wrote to the Surrogate’s Court stating his opinion that the testator has changed her domicile from New York to Florida. Later, he changed his mind and filed this application for probate in the Surrogate’s Court of New York. A New York Probate Lawyer said the heirs at law filed a similar action for probate of the will in Florida. They assert that the testator was domiciled in Florida. The testator’s brother filed the petition and asked that he be named as executor because the testator’s lawyer is ineligible for appointment as executor in Florida as he was not a resident of Florida.

The distributees of the will filed a motion for summary judgment asking that the will be admitted to probate. The Surrogate’s Court set a date for pre-trial where the parties were given the opportunity to amicably settle the matter but no agreement was produced.

The Surrogate’s Court then denied the motion for summary judgment to admit the will into probate. Suffolk County Probate Lawyers said the Surrogate’s Court held that the testator was domiciled in Florida and it refused to exercise its jurisdiction.

The lawyer and the distributees appealed the Surrogate’s Court’s dismissal of the motion for summary judgment.

The Supreme Court held that the question on where a person is domiciled is a mixed question of fact and law. The Surrogate’s Court should have accepted evidence and reviewed the evidence on the question of the testator’s domicile. The Supreme Court further held that the person who alleges that the testator has changed his domicile is the person who has the obligation to submit evidence proving his allegation.

At the time of the testator’s death, it is admitted that she had residences in both Florida and New York. Under the laws of domicile of New York, when a testator has two residences, the residence which was established first is the testator’s domicile. This presumption holds until there is clear evidence that the testator has changed domicile.

Long Island Probate Lawyers said the testator had two driver’s licenses from Florida and New York. She registered to vote in Florida. But all of her financial and business operations were in New York. Her bank accounts are all in New York, and in her will, she expressly stated that she is a resident of New York. In her will, she asked to be buried in New York near her home.

While it is true that the lawyer and executor of the testator had expressed his opinion that the testator has changed her domicile to Florida, this is his personal opinion and it cannot be controlling. The testator’s brother who filed the probate proceeding in Florida has also declared to the authorities in Florida when he furnished them a copy of his sister’s death certificate that he believed his sister to be domiciled in New York.

The Court held that in view of all these facts, the respondents have not clearly or convincingly proved that the testator had intended to change her domicile. This issue was an issue of fact and law which should have been tried. For this reason, the Surrogate’s Court’s dismissal of the petition for probate is reversed.

The Supreme Court also stated that even if there is clear and convincing proof that the testator has changed her domicile to Florida, there is still grounds for the Surrogate’s Court to entertain the petition for probate: the testator’s assets are almost all located in New York, his fiduciary/executor is in New York and Florida discriminates against the executor named in the will. All of the beneficiaries of the will ask that the will be probated in New York. And most importantly, the testator herself has declared herself to be domiciled in New York and she expressed her desire for her estate to be administered in accordance with the laws of New York.

The issue of domicile is crucial for the success of a petition for probate. A skilled lawyer can help you argue and prove the domicile of the testator. The legal team at Stephen Bilkis and Associates are willing and ready to assist you. See them at any of their offices throughout the New York area and ensure that you don’t come to court unprepared to prove the testator’s domicile.

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