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Court Hears Venue Challenge in Will Contest Case


On 16 July 1983, a decedent died leaving a will. He was survived by several children, one of whom receives less than his distributive share in the estate under the propounded will.

A New York Probate Lawyer said that on 8 September 1983, the probate petition, a will contest proceeding, was filed and on 9 November 1983, jurisdiction was complete. On 14 December 1983, preliminary letters were issued to the nominated fiduciary on consent. On 3 January 1984, objections were filed by the partially disinherited son. On 6 February 1984, examinations before trial were complete. Approximately 10 months after the filing of the objections, the partially disinherited son moves to dismiss the petition on the ground that the decedent was not domiciled in Nassau County but in Bronx County.

As provided for under Article 2 of the Surrogate’s Court Procedure Act, jurisdiction over domiciliaries of the State of New York rests solely with the county where the decedent died domiciled.

In the landmark case entitled Matter of Coletti, the Surrogate requested that the Legislature consider amending Article 2 of the Surrogate’s Court Procedure Act because the statute as it existed at that time was rigid in that the Surrogate had no alternative but to dismiss a proceeding if he lacked jurisdiction because the decedent was not domiciled within his county. It was suggested that the Surrogates be given state-wide jurisdiction over all domiciliaries but that there be a strong venue statute so as to provide that proceedings should be brought within the county where a domiciliary of the State of New York died domiciled; but at the same time rather than have a Surrogate dismiss a proceeding because of lack of jurisdiction he be permitted to transfer a proceeding to a proper county. According to the Surrogate, this procedure would not cause a delay in the proceedings because all that which has already transpired within the county where the proceeding was initially brought would be picked up when the matter is transferred to a new county; there would be no need of starting a brand new proceeding and the payment of new filing fees.

A Manhattan Probate Lawyer said as practiced in other courts and pursuant to CPLR 511, a challenge as to venue should be made either in the answer or before the answer is served if the challenge has to do with a change of venue on the ground that the county designated is not the proper county. Provisions of CPLR apply to Surrogate practice only if there are no other statutory provisions set forth in the Surrogate’s Court Procedure Act.

Here, a Bronx Probate Lawyer said the court was mindful of the discussions concerning the proposed legislation that was suggested after the Coletti decision was released. Initially, the Surrogate’s Association was opposed to some of the legislation that was discussed concerning the change of domicile to venue because the Surrogates were anxious about the possibility of forum shopping by petitioners. The Surrogate’s Association construed the Coletti decision as a request to ease the transfer of proceedings rather than calling for adherence to the practice under CPLR. Nonetheless, the Surrogate’s Association wished to eliminate the need of dismissing proceedings when it found that a decedent did not die domiciled within their county and wished to expedite a means of transfer of the proceedings to the proper county. The legislative memo to the act amending SCPA 205 clearly indicated the position of the Surrogate’s Association that the intent of the statute was to continue the practice of the past but at the same time to permit an expeditious transfer. SCPA 205(2) provides that either the Surrogate, on his own motion or on the motion of any party, shall transfer the proceedings if it belongs in another county. Ordinarily “shall” means “must”.

Clearly, the time limitations found under CPLR 511 within which to raise a venue question were not applicable. The court may make a determination at any time prior to the decree as to whether a proceeding should be transferred or not within the confines of SCPA 205.

Accordingly, the court denied the application to dismiss the proceedings but a hearing on domicile was ordered to determine whether the court should retain jurisdiction of the proceedings or transfer them to Bronx County or any other county within the State of New York where the proceedings should have been commenced initially.

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