Published on:

Court Determines Jurisdiction of Conflicting Wills


An American citizen who was domiciled in Austria made two wills in 1962 and in 1964. The 1964 will was brought before the Surrogate’s Court in New York for probate by the testator’s lawyer who was also his executor. In this will, the testator revoked all prior wills and he directed that the remainder of his estate after the payment of debts and funeral expenses be shared by his ex-wife and his close personal friend.

The two daughters of the testator filed their objections to the probate proceedings in New York. They claim that because the testator was a resident and domiciliary of Austria, the courts in Austria have jurisdiction over his estate. It was also claimed by them that the Austrian Court has already begun hearing the probate proceedings of the 1962 will of their deceased father which the daughters instituted.

The 1962 will provided that the testator’s estate consisting of 145 common shares in an American telephone and telegraph company be distributed to his ex-wife after deducting the payment of debts and funeral expenses. And, if his ex-wife was dead, then the shares of stock will be divided equally between his two daughters.

A New York Probate Lawyer said that the Austrian court wrote the New York lawyer of the testator (who had filed the probate of the 1964 will in New York) telling him that if a certified copy of the 1964 will is furnished the Austrian court then the Austrian court can determine its validity and the issue of the revocation of the 1962 will can also be determined.

It appears that the Austrian court has delivered the proceeds of the estate to the daughters because the executor named in the 1962 will renounced his nomination as executor. It also appeared that the New York lawyer has not appeared in the Austrian court. And the Austrian court is still waiting for the 1964 will to be produced before it.

The Surrogate’s Court dismissed the daughters’ objections and admitted the 1964 will into probate. The only question raised by the daughters on a certified appeal was whether or not the Surrogate’s Court correctly dismissed the objection and admitted the 1964 will into probate.

The Supreme Court reasoned that a will executed by a person who is not domiciled in New York may still be admitted into probate if the will operates to dispose properties in New York and the will was executed in compliance with the laws of due execution of wills in New York. Nassau County Probate Lawyers said that a will cannot be originally probated in New York if it has already been probated in the testator’s domicile or has been denied probate by judicial decree in another jurisdiction.

The Supreme Court ruled that the Surrogate’s Court did not err in dismissing the daughters’ objections and admitting the 1964 will into probate.

The 1962 will was the one admitted into probate in Austria, not the 1964 will which is before the Surrogate’s Court. There was no judgment or decree from Austria as the proceedings there had been halted pending the production of the 1964 will.

The Court also observed that the issue is the validity of the 1962 and 1964 wills. The Austrian court has acted in accordance with its laws to distribute the personal property of the testator which was located in Austria. But it has not made any decree regarding the properties of the testator in New York because the 1962 will makes no mention of the disposition of the properties in New York.

The properties of the testator in New York comprise 90% of the total estate. The executor named in the 1964 will is a New York resident and one of the legatees is also a resident of New York. Also, the Austrian Court wrote a letter to the executor of the 1964 will stating that it would entail huge costs to prove the 1964 will in Austria which is why the executor decided to probate the will in New York. A Queens Probate Lawyer said the executor decided to litigate in New York where the substantial properties of the estate are located and risk the forfeiture of the properties in Austria which were minimal.

More importantly, the probate proceedings in New York were initiated in good faith and not with any desire to thwart the laws of Austria. For these reasons, the Court found that the Surrogate’s Court’s dismissal of the objections and admission of the 1964 will was not without basis.

Probating a will in the proper court is crucial to securing one’s hereditary rights under a will. If the will is presented for probate in a court that has no jurisdiction over the will or the estate, the probate petition will be dismissed unless a skilled lawyer can best inform you which court has jurisdiction to take cognizance of the probate of a will. At Stephen Bilkis and Associates, their legal team ready and willing to assist you to ensure that a valid will can be successfully admitted into probate.

Contact Information