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Court Decides Jurisdiction Issue Regarding Will and Trust


A man who was born and raised in Brooklyn died and survived by two grandchildren. For many years, the deceased and his wife lived in Florida where his granddaughter lived. At some point, he and his wife moved to Phoenix, Arizona where his grandson lived. They were living in Phoenix when the deceased man’s wife died. The deceased remained in Phoenix until he moved to New York in late September 2005.

While living in Phoenix, the deceased executed a will, which left his estate to the trustee. On the same day, he executed a trust agreement creating a revocable lifetime trust. Under the terms of the trust, the property passes to the grandson upon his grandfather’s death.

In 2005, the deceased called his sister and told her he wanted to return to Brooklyn to live with her. The sister and her daughter visited the deceased on September 27, 2005. At that time, the deceased was 95 years old and suffering from cardiac problems. The deceased asked his sister to take him back to Brooklyn to live with her.

According to the sister, the deceased told her that he wanted to change his will, his revocable trust and his health care proxy before boarding the plane. A New York Probate Lawyer said that when they travelled to New York, the deceased visited the offices of a law firm in Arizona and asked the firm to change the beneficiaries of the 2004 will and trust. The deceased executed a new will which is an amendment of the 2004 trust and health care proxy. The 2004 trust was amended and provides that upon his death, his sister receives one half of the trust principal, his granddaughter will receive three eighths of the trust principal and his grandson will receive one eighth of the principal. The deceased then left immediately for the airport leaving his belongings behind to travel back to New York that day.

That same day, the son filed an emergency petition for his appointment as conservator and guardian of the deceased. He alleged that the deceased had been taken from his house by church members. Westchester County Probate Lawyers said the proceeding was partial. Based upon the grandson’s testimony, the Arizona court granted his petition, appointed him as temporary guardian of the deceased and determined a pending hearing on whether a permanent guardian should be appointed.

Shortly after arriving in New York, the deceased was hospitalized for surgery for a blood clot on his leg. The granddaughter had a petition prepared for the appointment of a guardian of the deceased man. Meanwhile, the Arizona attorney who drafted the 2005 will was served with a petition demanding to deliver the deceased to Arizona. New York City Probate Lawyers said in response to the turnover petition, the deceased submitted an affidavit stating that he was residing in Brooklyn and listing his sister’s address as his residence.

The Mental Hygiene Law petition was filed in the Supreme Court, Kings County. A court evaluator was appointed by Kings County court and interviewed the deceased. The deceased died on December 4, 2005, before either proceeding could be concluded.

According to the affidavit in support of petitioner’s motion, the petitioner’s attorney filed a petition to probate the 2005 will. The petition stated that the deceased was a resident of New York. The validation clerk accepted the petition and the filing fee and made an entry in the minute book. No file number was issued on the pending review of the petition. On December 8, 2005, the attorney was notified in writing that the petition was not accepted for filing because there was insufficient proof of New York residence. The check for the filing fee was also returned on the ground that the check had alterations. On December 14, 2005, the attorney submitted a replacement check for the filing, also submitted was a copy of the deceased man’s affidavit of residence filed in the Arizona conservatorship proceeding, stating his residence as Brooklyn, New York, and an attorney’s affirmation on the deceased man’s residence.

On December 16, 2005, the grandson filed a petition to validate the 2004 will in the Maricopa County Court of Arizona, claiming that the deceased was a resident of Phoenix Arizona. On December 20, 2005, the attorney’s affirmation on residence of the deceased was rejected because it was based upon information and belief. The petitioner filed a copy of the court evaluator’s report, stating that the deceased told the evaluator that he was happy to be back in New York and did not want to return to Phoenix, Arizona. On January 31, 2006, the validation clerk issued a file number for the validation proceeding.

On February 1, 2006, the grandson filed objections to the validation of the 2005 instruments in Arizona. The objections deny that the will was executed in accordance with the formalities of law. He also claims that the deceased lacked the capacity to execute a will and that the will was executed by mistake and its execution was not freely made but a result of undue influence, duress and fraud. In addition, the objections claimed that there was a prior proceeding pending in Arizona to the validation of the 2004 will and that the Kings County New York court lacks jurisdiction on the subject matter.

The petitioner moved for preliminary letters of administration and a determination on the petition to the validation of the 2005 will filed in the Surrogate’s Court of Kings County. The grandson filed an affidavit in opposition which claims that the court should dismiss the motion and presumably, the proceeding on the grounds that the court lacks jurisdiction on the subject matter and there is a prior pending proceeding in Arizona.

The law provides that a party may move for a judgment dismissing one or more causes of action against him on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States. The court need not dismiss upon this ground but may make such order as justice requires.

In Surrogate’s Court, all proceedings are special proceedings commenced by the filing of a petition. In addition, the law provides that a proceeding is commenced with the filing of a petition, provided that process is issued and the service required on all respondents is completed within 120 days. While the law expressly provides that the date a petition is filed is used for purposes of statute of limitations questions, the date a petition was filed has been used to determine when a proceeding was commenced in other situations.

The law expressly provides that filing must be accompanied by the appropriate filing fee. The Court of Appeals has indicated that the payment of a filing fee is jurisdictional. There appears to be split among the departments of the Appellate Division on the issue of payment of a filing fee, with a majority holding that the tender of the filing fee is jurisdictional, so that the failure to pay the required fee renders the filing fatally defective.

In the instant case, the petition was filed on December 6, 2005. Papers are filed upon their physical receipt by the court clerk. The clerk accepted the petition but did not issue a file number or record its filing until a supplemental affidavit of residence was filed. The petitioner submitted a supplemental affirmation of residence on December 14, 2005, but it was rejected by the clerk because it was executed by the petitioner’s attorney upon information and belief. It was not until the petitioner filed a copy of the report of the court evaluator that the petition was accepted and a file number issued. By then, the grandson had initiated a validation proceeding in Arizona.

Whether the Arizona proceeding was filed first depends on whether the New York proceeding was initiated upon filing the petition on December 6, 2005 or upon being accepted by the validation clerk on January 31, 2006. In turn, it depends on whether the requirement that the petitioner establish the issue residence by the supplemental documents was jurisdictional. The analysis starts with the fact that the petition filed on December 6, 2005 in New York conformed to the requirements of the law and was in its proper form. The allegations in the verified petition are legitimate proof of the facts asserted until denied by an answer, objection or other proof. Therefore, for purposes of obtaining jurisdiction on the subject matter, the allegation that the deceased man was a resident of New York creates a legitimate proof showing of subject matter jurisdiction, subject, of course, to rebuttal.

The result is not affected by the fact that the validation clerk in Arizona required a supplemental proof of residence. Whatever the basis for the requirement of additional proof of residence, furnishing such proof is not required by the law. Therefore, the requirement is not jurisdictional and does not affect the filing date of the petition.

However, the failure to tender the filing fee in proper form may be a jurisdictional defect.

The law has no corresponding provision. It does provide that upon filing a petition for validation, the clerk shall charge and receive a fee as determined. Upon receiving the petition and fee, the clerk accepts the papers for filing and issues a file number. Therefore, it is not clear whether the tender of the filing fee is jurisdictional. The Court held that the failure to pay the required recording fee did not render the filing of a notice of election untimely. In the instant case, the court need not determine whether the improper tender of payment rendered the filing void. A replacement check was accepted on December 14, 2005. The act of replacing the check as payment cured the defect. Using either date, December 8, 2005 or December 14, 2005, the New York proceeding was filed before the filing of the validation petition in Arizona on December 16, 2005. Based on the above, the court determines that the New York validation proceeding was initiated by December 14, 2005. Accordingly, the grandson’s application to dismiss the said proceeding on the ground that there was a prior proceeding pending in Arizona is denied.

The claim that the court lacks subject matter jurisdiction depends on whether the deceased man established residence in New York State. The matter requires a hearing. Since the validation proceeding in New York was filed first, principles of orderly administration of justice and conservation of judicial resources mandate that the New York court should hold the hearing on determining the issue of residence of the deceased.

Since the validation proceeding in New York was filed before the one in Arizona, the court should hear and determine the residence of the deceased. Accordingly, the application to dismiss the proceeding on the ground of lack of subject matter jurisdiction is held in temporary suspension pending a determination of residence.

A person’s undecided residence should not cause disputes over his surviving family. Since he may not be around to express himself, the Court would be the only place where such issues can be put to rest. In times like this, you can call an experienced lawyer at Stephen Bilkis and Associates.

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