123 A.D.2d 83 | N.Y. App. Div. | 1987
OPINION OF THE COURT
Frances K. Gadway (hereinafter decedent) died testate in Flordia on January 17, 1985. At the time of her death, she had assets in both Florida and New York. Her will had been drafted and executed in this State under the direction of petitioner, her New York attorney. The will bequeathed 50% of the estate to respondents Catherine G. Gadway and Michael E. Gadway (hereinafter the Gadways). The remainder of the estate was bequeathed to decedent’s heirs at law as defined by the laws of descent and distribution of New York. Petitioner was named as decedent’s executor.
Although petitioner initially indicated in a letter to the Surrogate’s office that he believed decedent had changed her place of domicile from New York to Florida prior to her death, he subsequently changed his position and petitioned Surrogate’s Court to probate the will. Several of decedent’s heirs at law (hereinafter respondents) filed objections. Respondents asserted that decedent was domiciled in Florida at the time of her death and thus that the will should be probated in Florida. Additionally, respondents filed in Brevard County, Florida, a petition for administration of the will. In that petition, respondents sought to have respondent James F. Kennedy named executor of the will since under Florida law petitioner could not be permitted to act as executor.
We turn first to the issue of whether Surrogate’s Court properly determined that decedent was a Florida domiciliary. The question of domicile is generally a mixed question of fact and law which must be determined by the court after a review of the pertinent evidence (Matter of Brunner, 41 NY2d 917; Matter of Feinberg, 155 Misc 844 [Foley, S.]). No single factor is controlling and the unique facts and circumstances of each case must be closely considered (Matter of Trowbridge, 266 NY 283; Matter of Lamoutte, 195 Misc 907). It is incumbent upon the party seeking to prove that a decedent changed his domicile to establish such a change by clear and convincing evidence (Matter of Newcomb, 192 NY 238; Matter of Bodfish v Gallman, 50 AD2d 457).
Here, respondents sought to prove that decedent had changed her long-standing domicile in New York to that of Florida shortly before her death. At the time of her death, decedent had residences in both New York and Florida. When a decedent has two residences, the earlier in time remains the individual’s domicile until a clear intention to change is established (Matter of Miller v Police Commr. of City of N Y.,
In support of their position, respondents stress that petitioner initially indicated to Surrogate’s Court that he believed decedent had changed her domicile to Florida. Petitioner’s statement, as a long-time friend of and attorney for decedent, while not unimportant, is certainly not controlling. Further, it is somewhat ironic that Kennedy, decedent’s brother, provided information to Florida officials for decedent’s death certificate which indicated that, at that time, he believed decedent was domiciled in New York. Given his relationship to decedent, Kennedy’s representation to Florida officials is entitled to the same consideration as petitioner’s statement to Surrogate’s Court.
In light of the above, we are unconvinced that respondents produced clear and convincing evidence that decedent intended to change her domicile from New York to Florida. We find that serious issues exist as to whether decedent evidenced a clear intention of changing her domicile, and thus Surrogate’s Court should not have summarily decided the issue. However, even assuming that decedent was a Florida domiciliary at the time of her death, in the exercise of discretion we reverse for the following reasons.
Where the vast majority of a decedent’s assets are located in this State and the laws of testator’s domicile discriminate against New York fiduciaries named in the will, there is authority for granting original probate in New York (see, Matter of Goldstein, 34 AD2d 764; Matter of Brown, 107 Misc 2d 970; see also, SCPA 1605; Matter of Heller-Baghero, 26
Main, J. P., Weiss, Mikoll and Yesawich, Jr., JJ., concur.
Decree reversed, on the facts, without costs, and petition granted.
The Florida statute provides:
"A person who is not domiciled in the state cannot qualify as personal representative unless the person is:
"(1) A legally adopted child or adoptive parent of the decedent;
"(2) Related by lineal consanguinity to the decedent;
"(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
*85 "(4) The spouse of a person otherwise qualified under this section” (Fla Stat Ann § 733.304).
Under this statute, petitioner cannot qualify as executor. Respondent James F. Kennedy, however, is decedent’s brother and thus he would be permitted to act as executor.