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Court Discusses Jurisdiction Issue Regarding Probate Proceedings


A woman died in October 1951. She executed a last will and testament nine years earlier in 1942. This will was submitted for probate and was admitted into probate in St. Lawrence County. The legatees of a more recent will allegedly executed by the woman in June 1951 four months prior to her death, was also submitted for probate in Kings County.

The woman was born in St. Lawrence County. The testator was a licensed public school teacher and she has been assigned in various public schools up and down St. Lawrence County until she was thirty-three years old. St. Lawrence is her domicile of origin. In two periods of her life from February 1898 until September 1926 and again from March 1928 until January 1935, the woman was assigned in different schools in the different counties of New York.

When she got married, she lived with her husband for years in Lincoln, Nebraska. Later, in 1929, she and her husband left Lincoln, Nebraska and moved back to Brooklyn, New York. They later moved to a new house on Island Park, Long Island also in New York. A New York Probate Lawyer said until much later, when her husband had died, she sold the two houses she and her husband acquired at Island Park, Long Island.

She left Long Island and rented an apartment in Brooklyn again. She left her apartment in Brooklyn and went on vacation in Maine. After her vacation, she went to live with her brother in St. Lawrence County where she stayed for three months. She visited her nephew at DeKalb in St. Lawrence County. She was hospitalized there and stayed at a boarding house while she recuperated. Later she returned to Brooklyn. She visited her stepdaughter at Mt. Vernon, New York but while she was there, her stepdaughter sustained an injury and had to be hospitalized. With no one to take care of her, the testator stayed at a nursing home in Mt. Vernon, New York. She asked her nephew to come and get her from the nursing home and stayed with them at DeKalb, in St. Lawrence County where she died 45 days later.

There is a question in the probate proceeding in Kings County if this later will should be admitted into probate here in Kings County as she was domiciled in Kings County at the time of her death.

The only question before the Court is whether or not the testator was domiciled in Kings County prior to her death. Long Island Probate Lawyers said the Court held that a person is domiciled in a certain place if he resides there and has intention to make his residence there permanent and not temporary. The testator here had resided in so many places around New York but she usually returned to Brooklyn. There is evidence that the woman went to live in DeKalb Junction only because she would rather give her nephew money for her care than to give the money to strangers at the nursing home she was staying in at Mt. Vernon. She opened a band account in St. Lawrence County but this was opened and used by her nephew through a power of attorney she had granted to him.

The woman was a registered voter in Brooklyn. Manhattan Probate Lawyers said she lived and made friends with people in Brooklyn. She had financial and business interests in Brooklyn and was an active member of a church in Brooklyn. Her tax returns were all filed and her taxes paid in Brooklyn and she consistently stated that her home address was in Brooklyn. In her two wills she stated that her residence was in Brooklyn.

It is clear that the testator had regarded Brooklyn as her permanent home to which she would resort time and again after her many travels and vacations. Her consistent intention was to return to Brooklyn which she regarded as her permanent home.

The order of the Surrogate Court denying probate to the will for lack of jurisdiction as the Surrogate Court wrongly held the testator to be a resident of St. Lawrence County, was set aside and reversed. The case was remanded to the Surrogate’s Court for further proceedings.

If you are thinking of bringing a will into probate, you must ask yourself if the testator is domiciled in the county where you are presenting the will for probate. Call Stephen Bilkis and Associates. Meet and speak with any of their New York Probate attorneys who can advice you as to the best place to file your probate petition. Call Stephen Bilkis and Associates today.

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