Published on:

Petitioner Files Motion to Dismiss for Lack of Jurisdiction


This is a motion to dismiss a petition for original probate for lack of jurisdiction, both as a matter of law in the exercise of the court’s discretion.

A New York Probate Lawyer said that decedent died in New Hampshire. Decedent was a non-resident of New York. The proponent-executrix, decedent’s widow, contends that decedent was and that she is a domiciliary of Vermont and that decedent was a citizen of the United States. The moving party, decedent’s daughter, contends that decedent was a domiciliary of Zurich, Switzerland and that he had dual nationality being a citizen both of the United States and of Switzerland. The moving party is herself a domiciliary of Spain.

A New York Will Lawyer is claimed that 90% of the assets of the estate are in a custody account in New York. There are some assets both in Switzerland and in Vermont including a house in Vermont and an apartment in Zurich. The propounded will was executed in New York and contains a clause directing that the construction of the will and the administration of the estate shall be governed by the laws of the State of New York. Two of the three subscribing witnesses to the will were stated in the will to be residents of New York and the third a resident of New Jersey. The substituted executors named in the will are apparently residents of New York. So far as appears, no probate proceeding or other proceeding for the administration of decedent’s estate is pending in Switzerland or Vermont or anywhere but in New York.

In these circumstances, the Court ruled to dismiss the motion on the petition for probate for lack of jurisdiction should be denied without the necessity of determining whether decedent was a domiciliary or national of Switzerland.

A Westchester County Probate Lawyer said in the face of the statutes, this court has discretionary jurisdiction. Surrogate’s Court Act, § 45 provides: ‘The surrogate’s court of each county has jurisdiction, exclusive of every other surrogate’s court, to take the proof of a will, in either of the following cases: 3. Where the decedent, not being a resident of the state, died without the state, leaving personal property within that county, and no other;.’

Decedent Estate Law, § 23 provides: ‘A will of real or personal property, executed as prescribed by the laws of the state, or a will of real or personal property executed without the state in the mode prescribed by the law, either of the place where executed or of the testator’s domicile, provided such will is in writing and subscribed by the testator, may be admitted to probate in this state.’

Suffolk County Probate Lawyers said that Decedent Estate Law, § 47 provides: Whenever a decedent, being a citizen of the United States or a citizen or a subject of a foreign country, wherever resident, shall have declared in his will and testament that he elects that such testamentary dispositions shall be construed and regulated by the laws of this state, the validity and effect of such dispositions shall be determined by such laws.’

Where a petition is presented by a person interested in the estate, showing the death of a nonresident, the execution of the will, and the presence of personal property within the surrogate’s jurisdiction, it is the duty of the surrogate to admit such will, if properly executed, to probate in this state, unless it also appears that such will has been duly admitted to probate elsewhere. The burden of showing such fact is upon the party objecting to the probate.’

In a case, the court ruled: It is the settled law of this state, that the surrogate has jurisdiction and it is his duty to proceed with the probate of a non-resident’s will of personal property executed as required by section 21 of the Decedent Estate Law without waiting action by the corresponding tribunal of the domiciliary state.’

‘Cases may arise where the discretion of the surrogate may be exercised by the denial of an application for original probate in his court but persuasive reasons must be presented to justify the transmission of the testamentary instrument to the state of domicile for disposition there.’

On the facts of this case, therefore,–except for the treaty with Switzerland discussed below–it would appear to be the well established policy of the courts of this State to entertain jurisdiction of the probate proceeding.

On the assumption that decedent died a domiciliary of Switzerland, the moving party relies heavily upon a provision of the Swiss-United States Treaty of 1850, Article VI, 11 Stat. 587, which reads: ‘Any controversy that may arise among the claimants to the same succession, as to whom the property shall belong, shall be decided according to the laws and by the judges of the country in which the property is situated.’

Whether or not decedent died a domiciliary of Switzerland, I do not believe that this provision precludes that court’s exercise of jurisdiction or requires it to try out the issue of domicile in connection with jurisdiction.

In another case, the Court ruled that ‘From any viewpoint the language of the treaty cannot be considered as restrictive or designed to take away the existing rights of an American citizen to freely dispose of his property in the United States. It affirmatively assures an American citizen while domiciled in Switzerland of equality of treatment with Swiss nationals, confirms his right to dispose of even his property located in Switzerland by testament or otherwise and expressly provides that the law of the situs is to prevail in any controversy as to the succession of his property. There is no language in the treaty that would indicate it was to have any extra-territorial effect which would extend its application to an American citizen’s personalty located in New York. Only by stretching the domiciliary rule to unreasonable limits can it be found that this decedent’s personal property in New York was subject to the Swiss laws of succession.’

With respect to probate jurisdiction, the Court doubted that the treaty means more than that there shall prevail between Switzerland and the United States the established rule of comity–that when the domiciliary state actually assumes jurisdiction, the non-domiciliary state will not interfere. This rule of comity prevails as between New York and sister States of the American Union. The object of the contracting nations being presumably to secure within each State equality of treatment for the foreigners within its borders with its own nationals, it seems unlikely that Switzerland and the United States intended to contract for greater comity and deference to be paid by an American State to the Swiss Courts than it would pay to a sister State of the American Union. Nor has there been any suggestion of any reason why the contracting nations should have meant to put estates of Swiss domiciliaries in a special position different from that of domiciliaries and nationals of other countries with whom the United States is on friendly terms.

Accordingly the motion to dismiss the petition for probate for lack of jurisdiction is denied.

An estate of an individual represents the properties which the decedent left. Here in Stephen Bilkis and Associates, we have New York Estate attorneys who will give you an advice on how to properly distribute your estate. In which case, upon the death of an individual, his heirs will not be left behind. We also have New York Probate lawyers who will bring the last will and testament in Courts for its probate.

Contact Information