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Respondent Contends Court Lacks Subject Matter Jurisdiction


In this Will Contest case, a motion by the executor for an order consenting to a transfer to this court of an action currently is pending in Supreme Court, New York County. Respondent argues that this court lacks subject matter jurisdiction of the dispute and that Nassau County is not the proper venue for the case.

A New York Probate Lawyer said that the decedent died in December 1993. The court admitted his Last Will and Testament to probate and issued letters testamentary to petitioner thereafter. Petitioner subsequently filed an accounting and a supplemental accounting, respectively, with this court. At the closing date of the latter, the estate held interests in real estate partnerships, all controlled by general partner. At a special meeting of the shareholders, decedent issued sixty shares of stock each to petitioner and respondent, with petitioner holding her shares in trust for respondent, and with respondent holding his stocks in trust for decedent, an arrangement referred to as a “tontine” trust. Evidenced in the meeting’s minutes is “the intention that the sole possession and ownership of the stock remain within the three parties and that the survivor of the three have sole possession of all the outstanding and issued stock of the corporation.” Also, new stock certificates would be issued when one of the parties died, and these would be evenly split and distributed to the remaining parties, with each holding his share in trust for the other. Petitioner disputes the existence of this arrangement, and respondent’s pending Supreme Court case pertains to petitioner’s actions as executrix relating to decedent’s sixty shares.

A New York Will Lawyer said the Surrogate Court’s subject matter jurisdiction has steadily expanded throughout the twentieth century. The Court of Appeals held in a case involving two living parties (one being a fiduciary of a decedent’s estate) and an eviction proceeding, that, “for the Surrogate’s Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate”.
It is readily conceded by the parties that decedent’s sixty shares are a major asset of the estate. In the accounting proceeding, petitioner moved this court for an order confirming majority shareholder’s corporate actions, compelling respondent, as vice president, to comply with a demand to call a special meeting and, as director, to consent to that meeting, imposing sanctions upon respondent, as vice president, for failure to call that meeting, and ordering respondent to pay attorney’s fees. Petitioner’s status as the controller of a majority of shares was vigorously disputed. This court ruled that these allegations did not pertain to either decedent’s affairs or the administration of his estate, but instead involved matters of corporate governance. In this motion, respondent asserts that because petitioner’s pending case would force this court to analyze the corporate minutes, it would ultimately be deciding matters of corporate governance and therefore be outside this court’s subject matter jurisdiction. However, respondent also alleges in his pending case in the Supreme Court that petitioner withheld forty of decedent’s sixty shares and gave ten shares to both him and his sister in violation of a disputed tontine trust. As this court described decedent’s shares as a “major asset” of the estate and respondent’s case involves those shares, it is not “abundantly clear that the matter in controversy in no way affects the administration of his estate.” In fact, a court decision regarding ownership of decedent’s sixty shares would undoubtedly affect the administration of his estate and is well within the court’s purview. Accordingly, the Surrogate’s Court has subject matter jurisdiction to hear respondent’s pending case insofar as the issue concerns ownership of the shares.

Manhattan Probate Lawyers said the next objection to transfer concerns an issue of venue. Under SCPA 207[1], proceedings involving lifetime trusts can be properly heard where “(a) assets of the trust estate are located, or (b) the grantor was domiciled at the time of the commencement of a proceeding concerning the trust, or (c) a trustee then acting sides.” Under SCPA 205[1], “the proper venue for proceeding relating to estates is the county of the decedent’s domicile at the time of his death ” If it is disputed whether the case involves a lifetime trust or an estate asset, SCPA 209[4] gives the Surrogate’s Court the power “to determine property available for distribution under his [the decedent’s] will and to determine the rights of any persons claiming an interest therein as between themselves, and to construe any instrument made by him affecting such property.”

New York City Probate Lawyers said that while Respondent asserts that a tontine trust between decedent, petitioner, and respondent governs the decedent’s sixty shares, petitioner claims otherwise, arguing that the shares pass under the decedent’s will addresses the shares. Because it is disputed whether a lifetime trust governs decedent’s shares, the Surrogate’s Court can make a determination as to whether the sixty shares are available for distribution. Further, not only was decedent’s will admitted to probate by this court, but this court was subsequently involved in two accounting proceedings regarding the decedent’s estate. While the court in a case enforced SCPA § 207[1] after probate, there was no controversy over the existence of the inter vivos trust, and the Surrogate’s Court was not involved in post-probate action between parties. There is a controversy over the existence of a tontine trust, and this Court has been involved with numerous matters regarding the decedent’s estate. Therefore, Nassau County is the proper venue for respondent’s pending case to be heard.

Because both subject matter jurisdiction and venue are proper, this Court consents to the transfer of pending case as Executrix of the Estate of the decedent from Supreme Court in New York County to the Surrogate’s Court in Nassau County, if the Supreme Court be inclined to order its transfer.

Court should be guided by diligent and fair advocates in settling an estate of a decedent. Here in Stephen Bilkis and Associates, our Nassau County Probate lawyers makes it a point that every angle of the case were studied carefully in order to prevent miscarriage of justice and sees to it that the provisions embodied in the will were enforced. For other cases, contact our Nassau County Estate attorneys for a proper advice.

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