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Court Rules on Estate Case Regarding Jurisdictional Issues


A New York Probate Lawyer said the petition for letters of estate administration is opposed by the deceased father’s son and daughter who have filed with their objections papers certifying that their father’s will was probated in the Superior Court for the District of Montreal, Quebec, on December 14, 1962. The certificate indicates the will was probated without notice to the heirs and legatees of the deceased.

The petition for letters alleges that the father died intestate a resident of Nassau County. The objectant son and daughter challenge the allegation of residence in this county, and further contend that letters of estate administration may not be granted when the deceased left a will.

A New York Will Lawyer said that assuming the deceased father to be a non-resident and a will has been admitted to probate or established in another state or country, jurisdiction over original probate or administration in this state has been refused. Under such circumstances the Surrogate Court is limited to the issuance of ancillary letters upon proper application, accompanied by a copy of the will and of the foreign letters properly authenticated.

Nassau County Probate Lawyers assuming, that the decedent died a resident of Nassau County, it is true that letters of administration could not be granted according to statute if there is a will. The statute, however, has been held to refer to a valid will. The existence or the filing in the Surrogate’s Court, of a paper purporting to be a will does not import validity to the paper. It becomes a valid will only after it has been duly admitted to probate. However, not all the persons interested in the will and codicil probated or established in Quebec have been given an opportunity to probate such will in this county, and before letters of administration could issue such opportunity would have to be afforded them.

Staten Island Probate Lawyers said from what has been said, it is apparent that the issue of domicile must first be resolved before any further determination can be made. The certificate of the Superior Court of the Province of Quebec showing the will to have been admitted to probate, contains no finding of residence or domicile in Quebec, Canada, but states that the Last Will and Testament and Codicil thereto of the deceased father in his lifetime is New York, one of state of the United States of America, formerly of the City and District of Montreal, Province of Quebec, Canada.

In another probate proceeding, a hearing to determine the domicile of the decedent has been held. The objectants allege that the decedent died a resident of New York County. Under the Surrogate’s Court Act, the surrogate of the county where the decedent was a resident at the time of his death has jurisdiction, exclusive of every other surrogate’s court, to take the proof of a will.

The decedent was a resident of Nassau County from 1927 to approximately 1958. In or about the year 1958 he took up residence in a Hotel in New York. In 1959, in connection with drafting his will, the decedent told his attorney he resided at the Central Park West address. He also maintained a safe deposit box in a bank located in New York County. In 1960 the decedent registered as a voter with the Board of Elections in the City of New York and stated that he had resided in the city for one year and six months.

In 1961, the decedent rented an apartment in Freeport, Nassau County, and made a deposit on the purchase of a car. However, within a week or two thereafter, he immediately reversed his plans and returned to his New York City apartment after expressing to his daughter how stupidly he had acted in arranging to purchase a car. The decedent had previously owned a car but it had been decided that he should not drive, apparently because of his health. He was at this time approaching seventy years of age.

Again, the decedent signed a lease for another apartment in Freeport. His tenancy was to commence on August 1, 1962. However the apartment was not ready for occupancy until after his death on August 22, 1962, in a Nassau County hospital.

While the petitioners’ entire memorandum is devoted to the argument that decedent never abandoned his domicile in Freeport and acquired a new domicile in New York City, there is ample evidence to conclude that decedent did adopt the apartment in New York City as his place of residence or domicile.

Although the decedent’s frustrated attempt to re-locate in Nassau County in 1961 and his last final efforts, interrupted by death, certainly indicate a desire to re-establish his Nassau County residence, there is no evidence that his New York City apartment was ever abandoned. As the court said there must be more shown than desire and intent to change; there must be in fact a change of domicile. The court accordingly holds that the decedent at his death was a resident of New York County, and dismisses the petition for lack of jurisdiction.

People move from one place to another for various reasons. Some move to find a better place to live while others just look for a breath of new environment. If you have a probate related action, consult the Nassau County Probate Lawyer or the Nassau County Will Contest Attorney from Stephen Bilkis and Associates.

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