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Will Contest Filed Based on Domocile of Decedent


A citizen of the United States and resident of Kings County had lived most of his life in Kings County and has acquired properties and interests there. However, in the last years of his life he has lived in Casablanca in the Northern African French Protectorate of Morocco.

The Surrogate’s Court of Kings County entertained the probate petition but soon a will contestant appeared and filed his objection stating that the testator was already domiciled in Casablanca, Morocco at the time of his death.

The petitioner and the will contestant agreed to reserve the issue of determining the domicile of the testator until after the executor has filed a preliminary accounting/inventory of the properties comprising the estate of the testator.

A New York Probate Lawyer said that after the executor submitted an accounting of the properties of the estate, the parties submitted evidence as to the domicile of the testator at the time of his death to determine which law shall govern the distribution of the properties of the estate.

The testator was survived by five children. One of them was legitimated by a final judgment. Of these five sons, there was one who died long before the testator. The specific provisions of the will must be governed by the rules of inheritance of French Civil Law which governs Casablanca, Morocco.

Under French Civil Law, the testator cannot distribute his estate as he pleases. Three fourths of his estate must be distributed to his “forced” heirs, his sons. Each son is counted as one heir and will receive one share. The children of the son who died long before his father, the testator, will inherit equally the one share that their father gets. The legitimated son will get only half a share as the legitimate sons.

The testator created trusts in favor of some of his grandchildren who were still infants. French Civil Law does not allow for trusts to be recognized. Therefore, a Long Island Probate Lawyer said the estate of the testator will be distributed as follows: three-fourths will be shared by all his five sons: each son gets one share except the legitimated son who will only get half the share of a legitimate son. He grandchildren of the testator by his son that predeceased him will inherit from him in representation of their father, the son of the testator. They will share their predeceased father’s one share equally.

The remaining one-fourth of the estate will be considered a free portion which will be distributed in equal shares to the infant beneficiaries named by the testator as the beneficiaries of the trust he created in his will. Brooklyn Probate Lawyers said their share in the one-fourth of the estate must be equal and these will be outright gifts in cash.

The Court held that in probate proceedings of a person who is domiciled in a country or state different from the state where his will is being probated, the law of the country or state of his domicile will apply not only to determine if his will was duly executed under the laws of his domicile; the distribution of his estate will also be governed by the laws of the country or state of his domicile.

In this case, the testator’s wish of creating a trust for his minor grandchildren was not given due course because the law of his country of domicile do not provide for the creation of trusts by a will. Are you a distributee of a will? Was the testator domiciled in Kings County at the time of his death? You will need the assistance of a Kings County Probate Lawyer to prove the domicile of the testator in Kings County. A Kings County Probate Lawyer can also prove that the laws of the state of New York govern the testator and his will. Call Stephen Bilkis and Associates today. Speak with any of their Kings County Probate attorneys who are willing and able to represent you and argue your case in your behalf. Call Stephen Bilkis and Associates today or see any of their Kings County Probate attorneys at any of their offices conveniently located in the New York area.

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