In the Matter of the Probate Proceeding, Will of Mary Susan Wayne, Deceased.
348597
SURROGATE'S COURT OF NEW YORK, NASSAU COUNTY
June 3, 2008, Decided
JUDGES: JOHN B. RIORDAN 
, Judge of the Surrogate's Court.
John B. Riordan , J.
In this probate proceeding, David T. Wayne moves pursuant to SCPA 205 for an order transferring venue to Niagara County or, in the alternative, for a hearing to determine where venue should lie. Frederick J. Smith, the preliminary executor of the estate appointed by this court, opposes the motion.
The decedent, Mary Susan Wayne, died of cardiopulmonary arrest as a result of metastatic breast cancer on November 23, 2006 in Nassau County survived by her husband, David. Frederick is decedent's brother. At the time of her death, the decedent was living in Frederick's Nassau County home.
On or about September 26, 2006, two months prior to the decedent's death, David had commenced an action for divorce in Erie County, New York. The basis of venue is alleged to be David's residence. The decedent's address is listed on the summons as Wantagh, New York. The marital residence, located in Niagara County, had been sold in July 2006. David continued to live in Niagara County. The divorce action was pending at the time of the decedent's death. The decedent executed a last will and testament dated September 28, 2006, in which she declared herself to be from the town of North Bellmore and in which she states her intention not to provide for David or his family because he failed to support her.
On April 14, 2007, David filed in Niagara County Surrogate's Court a notice of election, a petition for right of election, a notice of application for letters of administration and petition for letters of administration. Counsel for Frederick sent a letter dated September 5, 2007 to the Chief Clerk of Niagara County Surrogate's Court stating, among other things, that Frederick was in the process of filing a petition for probate with this court. A citation returnable on October 29, 2007 was issued by Niagara County Surrogate's Court on September 27, 2007 in the administration proceeding David had filed. The citation delineated as the further relief requested "(1) whether this matter should be transferred to Nassau County or retained in Niagara County based upon the cross allegations raised in this Court; and (2) to address issues with respect to a purported will dated 8-28-2006."
Frederick filed a petition for probate of the will and letters testamentary in this court on October 11, 2007. An order granting preliminary letters testamentary to Frederick was issued on October 18, 2007, and preliminary letters testamentary were issued to him on October 19, 2007.
SCPA 205 (1) states:
"The surrogate's court of any county has jurisdiction over the estate of a decedent who was a domiciliary of the date at the time of his death, disappearance or internment. The proper venue for proceedings relating to such estates is the county of the decedent's domicile at the time of his [*2] death, disappearance or internment."
SCPA 205 (2) directs the surrogate to transfer a proceeding to the Surrogate's Court of the proper county either on the court's motion or a party's motion. Domicile is defined in SCPA 103(15) as "[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return." It has been
"defined as one's principal and permanent place of residence where one always intends to return to from wherever one may be temporarily located. A person may have two or more residences but can only have one domicile and it has generally been held that the residence established earlier in time remains the individual's domicile until a clear intention to change is established. The element of intent is essential" (Laufer v Hauge, 140 AD2d 671, 672-673, 528 N.Y.S.2d 878 [2d Dept 1988] [internal citations omitted]).
The party seeking to establish that the decedent changed domicile must prove the change by clear and convincing evidence (Matter of Newcomb, 192 NY 238, 250, 84 N.E. 950 [1908]; Matter of Gadway, 123 AD2d 83, 85, 510 N.Y.S.2d 737 [3d Dept 1987] [citations omitted]). "This is generally a mixed question of fact and law. Indeed it has been said that it is a question of fact rather than law, and it frequently depends upon a variety of circumstances, which differ as widely as the peculiarities of individuals'" (Matter of Brunner, 41 NY2d 917, 918, 363 N.E.2d 346, 394 N.Y.S.2d 621 [1977], quoting Matter of Newcomb, 192 NY 238, 250, 84 N.E. 950 [1908]). The decedent's intent to change domicile is essential (Matter of Urdang, 194 AD2d 615, 615, 599 N.Y.S.2d 60 [2d Dept 1993] [citation omitted]). A change of domicile requires "a union of residence and intention" (Matter of Newcomb, 192 NY 238, 250, 84 N.E. 950 [1908]).
David contends that the decedent had not changed her domicile and was living at Frederick's home in Nassau County as a matter of convenience "so that she had a place to stay while the divorce proceedings were being finalized" and so that she would have the assistance of her family if her cancer symptoms became more severe. He also asserts, upon information and belief, that she could not have formed the intent as to domicile due to the "heavy doses of prescription medicines [she] was taking at the time of her death." David asserts that the decedent received mail in Niagara County, was registered to vote there, executed her will there, and maintained a storage facility in Erie County, which is adjacent to Niagara County. He also asserts that the decedent made no attempt to transfer the divorce proceeding from Erie County to Nassau County and that the proceeds from the sale of the marital residence were being held in escrow by an attorney located in Niagara County pending resolution of the divorce.
To meet his burden, Frederick must show the decedent's intention to change her domicile to Nassau County by her acts, conduct and statements (Matter of Urdang, 194 AD2d 615, 599 N.Y.S.2d 60 [2d Dept 1993] [citations omitted]; Matter of Schwarzenberger, 215 AD2d 393, 394, 626 N.Y.S.2d 229 [2d Dept 1995] [citations omitted]; Matter of Pingpank, 134 AD2d 263, 265, 520 N.Y.S.2d 596 [2d Dept 1987] [citations omitted]). Frederick relies on the decedent's declaration in the instrument propounded as her last will and testament dated September 28, 2006 that she was "of the Town of North Bellmore," which is located in Nassau County. He also relies on the decedent having changed her New York State driver's license to Frederick's address in Wantagh, having established a checking account on which the Wantagh address is printed and having changed her billing address for her Macy's charge card to Wantagh. Additionally, Frederick relies on the fact that the decedent and David [*3] were in the process of divorcing and, as the marital residence had already been sold, that the decedent did not have a home in Niagara County to which to return.
The court finds that Frederick has met his burden of showing that the decedent changed her domicile from Niagara County to Nassau County. First and foremost, she no longer had a "principal and permanent place of residence" in Niagara County to which she could have intended to return (Laufer v Hauge, 140 AD2d 671, 672, 528 N.Y.S.2d 878 [2d Dept 1988]). Indeed, after the decedent and David were separated and the marital home was sold, the decedent did not obtain another residence in Niagara County, but, rather, moved to Nassau County. Further, she declared in the instrument propounded as her will that she was "of the Town of North Bellmore, New York." This, coupled with the decedent having changed her address on her license to an address in Wantagh, demonstrates, by clear and convincing evidence, her intent to make Nassau County her domicile. Finally, there is simply no evidence in the record to show that the decedent could not form the requisite intent to do so.
Accordingly, David's motion for an order changing venue to Niagara County or for a hearing to determine domicile is denied.
Settle order.
Dated: June 3, 2008