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Court Reviews Probate of Divorced Couple


A man had separated from his wife and died on November 19, 1983 in Pennsylvania where he was admittedly residing. He was survived by his wife and two adult sons.

On December 5, 1983, a petition for probate of the deceased man’s last will and its supplement was filed by the friend of the deceased and his attorney who were his nominated executors. Jurisdiction of the New York County Surrogate’s court was invoked on the basis that the personal property of the deceased which includes shares of a corporation in America, had come into the county of New York after his death. The beneficiaries under the will namely, the deceased man’s two sons, his father, his brother and two sisters, all consented for validation in New York County.

No provision was made for deceased man’s wife in the will. A New York Probate Lawyer said she was cited and filed an answer to petition with jury demand. Among her allegations, the wife contends that the New York County Court lacks jurisdiction over the estate because the subject jurisdictional assets and the shares of the corporation were fraudulently brought into the county. Subsequently, despite her contention that the court lacks jurisdiction, she moved for the issuance of temporary letters to any person other than the nominated executors under the will. The proponent’s cross-moved for the issuance of preliminary letters.

The deceased and his wife were separated pursuant to an agreement executed on December 2, 1980 in the state of New York. The separation agreement expressly provided that any dispute shall be determined by the Supreme Court of the State of New York in accordance with the laws of New York. Under the agreement, provision for the sale of her interest in the family corporation which is a major asset of the couple, was made by the wife.

In 1981, the deceased initiated an action in the Supreme Court New York County to convert the separation agreement into a divorce. The wife answered alleging the inadequacy of the agreement on several grounds and counterclaimed for a divorce on the ground of abandonment. The said proceedings were unresolved at the husband’s death and the action to determine the validity of the separation agreement has been adjourned pending the appointment of a personal representative of the deceased man’s property.

Shortly after the husband’s death, one of the named executors brought the deceased man’s stock in the family corporation into the county. The stock is apparently the principal asset of the deceased man’s property.

The issue concerning the jurisdiction of the New York County Court over the property of the deceased who is a non-resident of New York County was raised by the wife. Several statutes govern the original validation of the wills of non-residents. The principal statute provides that a will of a non-resident which upon validation may operate on any property in the state and is deemed by the laws of the state to have been validly executed for validation in the New York state, may be admitted for validation in the same manner as any other will may be admitted for validation under the act, except as otherwise prescribed.

Another provision, a Staten Island Probate Lawer expressed in terms of venue, governs the jurisdiction of the Surrogate’s courts over properties of non-residents. The law in relevant part provides that the Surrogate’s court of each county has jurisdiction exclusive of every other Surrogate’s court over the property of any non-resident of the state who left a property within that county and no other. It further provides that any resident of the state who left personal property which, since his death came into the county and no other county and remains unexecuted.

Thus, the court has jurisdiction to admit to original validation the will of any non-resident who at the time of his death had property within the New York County. The court also has such jurisdiction if the property was brought into the county after the death of the non-resident.

In the latter instance, a decision discusses in detail all prior decisions governing the circumstances under which bringing property into the county after the deceased person’s death will confer jurisdiction upon the court. It is apparent from the decisions that jurisdiction should not be declined merely because the property was brought into the county for the purpose of conferring jurisdiction if there was no wrongful intention and other circumstantial evidence are also present. Jurisdiction has however been declined when administration in New York was sought for fraudulent or other improper purpose.

No evidence has been presented to show any improper purpose in bringing the stock certificates into the county. Although jurisdiction over the property of a deceased must be accepted by the court, to entertain a non-resident’s property is discretionary.

Suffolk County Probate Lawyers said a number of cases discuss the factors which enter into the exercise of such discretion. The cases clearly establish that among the primary considerations for the exercise of discretion are the wishes of the person who made the will if expressed and also the convenience of the executors and beneficiaries.

In the instant case, many considerations exist which require the court to entertain jurisdiction. The will contains a provision which indicates that validation in New York was contemplated by the deceased. Another consideration is that there is a litigation which relates to the property and such is pending in New York County. Additionally, one of the two nominated executors and three of the four attesting witnesses to the will and supplements reside in New York. Finally, all persons interested in the property, other than the deceased man’s estranged wife, have consented to validate in the New York County court.

The wife’s rights in the property are as yet undetermined. Under the terms of the separation agreement, she waived any and all rights in her husband’s property. She however contests the validity of the agreement. If she is unsuccessful in setting aside the agreement, she will have no interest in the property. If she is successful, her rights are protected equally under the laws of New York as well as Pennsylvania.

Consequently, for all the said reasons, the court exercises its discretion and entertains jurisdiction. The court is satisfied that an executor must be appointed immediately in order to protect the assets of the property and to facilitate the litigation pending in the Supreme Court, New York County.

The nomination by the person who made the will of executors who shall administer his property is entitled to great respect. In the absence of the establishment of cause for disqualification, the nominated executors must be appointed.

The law sets forth those classes of persons who are ineligible to serve as executors. The grounds are not exclusive. The criteria contained for the removal of an executor may also be used to disqualify a named executor before appointment. A potential conflict of interest with a party interested in the property does not of itself constitute a ground for disqualification. No facts have been alleged to require a hearing on the fitness of the nominated executors.

Accordingly, the motion for the appointment of a temporary administrator is denied. Preliminary letters of administration shall be issued to the deceased man’s friend and his attorney who were nominated as executors, upon their duly qualifying according to law and filing a bond in an amount to be fixed in the ruling.

Wives fight over the husband during his lifetime, it is however very unlikely to fight over him or his will during his death. When you are trapped in a similar situation, call a qualified lawyer at Stephen Bilkis and Associates would be a wise thing to do.

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