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Court Listens to Jurisdictional Challenge of Will


An appeal on the ruling on the last will and testament of a deceased woman was filed in the Surrogates’ Court of Eric County. In the first appeal, the respondents appeal from a ruling admitting the last will and testament of the deceased who is a resident of Vermont to original validation and granting letters of administration and letters of trusteeship to the petitioner. In the second appeal, the respondents appeal from an order that dismissed their challenge to matter of jurisdiction of the Surrogate’s Court to the validation of the deceased woman’s will. In the third appeal, the respondents appeal from an order that denied their motion for leave to renew the jurisdictional challenge that was dismissed by the order in the second appeal. The order in the third appeal superseded the order in the second appeal therefore the second appeal must be dismissed. In the third appeal the Surrogate erred in denying the respondents’ motion for leave to renew and upon renewal, should have declined to exercise jurisdiction over the property of a nonresident and granted the respondents’ motion to dismiss the petition. The findings and order of the Vermont Probate Court accepting original jurisdiction over the property constitute new or additional facts that were unavailable at the time of the original challenge and that would change the prior determination.

Turning to the merits of the ruling in the first appeal and the order in the third appeal, it is firmly established in New York that jurisdiction over the property of a nonresident should not be transferred from the resident of the person who made the will unless it is required by some vital rule of law. Further, the Surrogate’s Court may exercise jurisdiction over a nonresident deceased person’s property when the deceased leaves the property in the state. A New York Probate Lawyer said that in determining whether to accept an application for original validation of a will of a nonresident which has not yet been admitted for validation in the deceased person’s residence, a court should examine the nature of New York’s contacts with the deceased and her property, including the location of the assets, the residence of the nominated executor and beneficiaries, the expense of proving the will in the residence of the deceased, the deceased person’s request, if any, for New York validation and the good faith of the proponents. The court should also consider what weight should be given to the fact that the residence of the deceased has already assumed jurisdiction over the property.

The petitioner contends that the Surrogate properly exercised jurisdiction over the property of the deceased based on the exercise in her will of certain limited powers of appointment over two trusts established by her predeceased husband for her benefit. Bronx Probate Lawyers said the property includes a trusts owned property situated in New York and ownership of three bank accounts allegedly located in New York. Contrary to the petitioner’s contention, the assets of the trusts were never the deceased woman’s property and thus are not for validation assets located in New York sufficient to grant jurisdiction in New York over the deceased woman’s property. It is well established that the property in a trust remains the property of the benefactor until it absolutely entrusted in some person or corporation and that a beneficiary with a power to appoint by will is a mere representative of the benefactor. Thus, when the deceased exercised the powers of appointment gave her by the terms of the trusts in favor of other trusts established in her will, she was not disposing of her own assets but, by authority bestowed upon her by her husband, she was disposing of property which never lost its identity as part of the trusts’ property.

The three bank accounts are intangible personal property, and the usual rule with respect to such property is that for administrative purposes they have their location at the residence of the owner. Brooklyn Probate Lawyers said there is no compelling reason to depart from the usual rule that intangibles have their location at the residence of the owner, which is Vermont. The three bank accounts in question constitute only 23% of the deceased woman’s property, and two of the three beneficiaries are nonresidents of New York.

Contrary to the petitioner’s disagreement, the Vermont law does not discriminate against a resident of New York acting as an executor. In any event, Vermont stated that it would consider the petitioner for appointment and, in fact, the petitioner has been appointed by Vermont as co-executor. Also, while one of the three beneficiaries resides in New York, that person advocates for validation in Vermont, and the other two beneficiaries reside in Vermont and Florida, respectively. There is no indication in the record that it would be more expensive to validate the will in Vermont rather than in New York and, although the will was drafted in New York and executed in New York, it contains no request that the will be validated in New York. In sum, Vermont has already accepted jurisdiction over a resident’s property, and it can be discern that there is no reason to transfer the original jurisdiction over the property from Vermont to New York based on the interests of the deceased, the beneficiaries or of New York State.

It is hereby ordered that the ruling appealed from be the same and is hereby unanimously reversed on the law without costs, validation is denied and letters of administration and letters of trusteeship are revoked.

Owning properties on different state makes us fragile to different distinct laws. To avoid legal disputes, it would be a wise move to familiarize ourselves with existing laws. When you are caught in this kind of situation, have the New York Probate Lawyers of Stephen Bilkis and Associates assist you and guide you through your ordeal.

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