The Court received and considered the following papers on Movant/Interested Party Joseph Matarazzo, Jr.’s motion to dismiss the above-captioned probate proceeding for lack of jurisdiction: 1. Movant/Interested Party Joseph Matarazzo, Jr.’s Notice of Motion, Tuckfelt Affirmation, Affidavit of Joseph Matarazzo, Jr. and Exhibits A trough M, filed on April 27, 2021; 2. Mahon Affirmation in Opposition, Affidavit of Petitioner Gerard Matarazzo and Exhibits A through J, and the Affidavit of Lynn Matarazzo filed on June 16, 2021; and 3. Tuckfelt Reply Affirmation with Exhibits 1 through 4, containing the Affidavits of Elizabeth Connolly and Abbie Zola, filed on June 25, 2021. BACKGROUND Petitioner Gerard Matarazzo is the son and nominated sole executor and 50 percent beneficiary under an instrument purported to be the Last Will and Testament of Ann Matarazzo (the “Deceased”) dated April 10, 2014 (the “2014 Will”). The petition herein seeks to probate the 2014 Will. Movant Joseph Matarazzo, Jr., is the second son of the Deceased and nominated co-executor (with Petitioner) under an instrument purported to be the Last Will and Testament of Ann Matarazzo dated December 21, 2015 (the “2015 Will”). Joseph’s beneficial interest under both Wills (12.5 percent) is the same, as are the beneficial interests of the Deceased’s three grandchildren (12.5 percent each). The 2015 Will purports to revoke all prior wills, including the 2014 Will. The petition herein (to probate the 2014 Will) makes no reference to the 2015 Will. Movant Joseph Matarazzo, Jr., has moved to dismiss this proceeding for lack of jurisdiction, arguing that the Deceased was domiciled in New Jersey at the time of her death, a change from her original domicile in New York. Further, the Movant argues that the Deceased, by the time of her death, had insufficient contacts with New York for this Court to sustain jurisdiction over a will of a non-domiciliary pursuant to SCPA §§206, 1605. THE PARTIES’ CONTENTIONS Petitioner Gerard and Movant Joseph, Jr., are the two children of the Decedent. Gerard lived with his parents (Decedent and Joseph Matarazzo, Sr., the parties’ father) at their home in Malverne, New York beginning in 1986. At around the same time in 1986, Gerard purchased a house located in Greenwood Lake, New York; however, he continued to live with his parents, in Malverne, in order to care for them and handle their personal affairs into their senior years. In 2009, the parties’ father, Joseph, Sr., died. In 2010, Gerard got married for the first time at the age of 58. Joseph, Jr., alleges that the Decedent began living with his family, in Washington, New Jersey, in 2010 following the death of his father, Joseph, Sr. He further alleges that Gerard had little to do with the Decedent from 2010 to 2014, presumably because he had just gotten married for the first time and started living his married life at his home in Greenwood Lake, New York. Non-party witness Lynn Matarazzo (Gerard’s wife) states that the Decedent began living “on and off” with Joseph, Jr. in 2013. She further states that, in 2013, Joseph enrolled the Decedent in senior day care six days a week at a senior center that specialized in dementia/memory care. Decedent sold her house located in Malverne, New York, in August of 2015, and thereafter resided at Joseph, Jr.’s home in Washington, New Jersey. In 2018, Decedent moved into a nursing home in Pennsylvania. After selling her home in New York, she did not purchase a new residence in New York, New Jersey, or anywhere else.It is undisputed that the Decedent never resided at Gerard’s house in Greenwood Lake, New York. Gerard, however, characterizes the totality of Decedent’s residence at Joseph, Jr.’s house in Washington, New Jersey, as “brief” and “temporary,” alleging that the Decedent “lived on and off” with Joseph, Jr., from 2013 to 2018. In comparison, Joseph, Jr., alleges the that the Decedent’s residence at his home in New Jersey was continuous and exclusive from 2010 to 2018. Gerard alleges that the Decedent stayed with him and his wife from 2013 to 2018 on “numerous weekends.” Gerard further alleges that the Decedent asked if she could move in with him; however, Gerard admits that this, “…was not possible because she could not navigate the multiple staircases in my house without assistance and my wife and I were both working.” (See Gerard Affidavit in Opposition, 10). Gerard alleges that he held a power of attorney and health care proxy for the Decedent; however, neither document was submitted as an exhibit in this motion sequence. Notably, however, Gerard’s Exhibit F (a letter from his attorney) states that Gerard held power of attorney for the Decedent dated April 10, 2014. From other exhibits, it does appear that Gerard handled many, if not most, of the Decedent’s financial affairs, including tax returns, social security benefits/statements, pension benefits/statements, Medicare benefits/statements and financial account/adviser statements, which were, by and large, addressed to Gerard’s address in Greenwood Lake, New York. Regarding Decedent’s UBS Financial Services investment account statements, as of 2016, UBS mailed them to the Decedent at her Washington, New Jersey address. Gerard also alleges that Joseph, Jr., committed forms of elder abuse against the Decedent, primarily in the form of taking or spending her money in various ways. One such disputed instance concerned the Decedent’s financial investment account at UBS Financial Services, from which Gerard alleged that Joseph, Jr., was wrongfully withdrawing funds for improper purposes or wrongfully causing the Decedent to withdraw funds. Gerard’s Exhibit F, a letter from his attorney to UBS Financial Services dated January 5, 2016, states that, “…Ann is approximately 90 years old, has Alzheimer’s/dementia and is on medication for same, and is unable to manage her financial affairs” and that, “There exists no other valid power-of-attorney for Ann, and she no longer has the mental capacity to execute one.” In January of 2018, the Decedent entered residence at a senior center in Pennsylvania, which cared for those suffering from Alzheimer’s disease and/or dementia. The Decedent died while residing at the senior center in December of 2020. Neither party is contending that Pennsylvania became the Decedent’s domicile.1 Joseph, Jr., alleges that he has hired an attorney to probate the 2015 Will (which was executed and witnessed in New Jersey) and that the probate process has been initiated, though no specifics or documentary records regarding the status of same have been provided in this motion sequence. In summary, Joseph, Jr., contends that the sale of the Decedent’s New York home in 2015, her move to New Jersey (without ever residing in New York again) and conducting her life in New Jersey from 2010 to 2018 demonstrates her change of domicile from New York to New Jersey. In contrast, Gerard contends that the Decedent only “briefly” stayed with Joseph, Jr., and that she never abandoned her original New York domicile, as demonstrated by her continued payment of New York State income taxes and her use of Gerard’s Greenwood Lake address as a residential address for purposes of taxes and several other financial, health and benefit matters. (See Gerard Affidavit in Opposition 10; Mahon Affirmation 27). ANALYSIS A. Domicile The Surrogate’s Court of any county has jurisdiction over the estate of a decedent who was a domiciliary of New York State at the time of the decedent’s death. See SCPA §205. Domicile is defined as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return.” See SCPA §103(15). Whereas domicile is permanent and singular, residence may be temporary and plural: Residence is necessary to establish a domicile but it is not controlling unless there is the intention of making that place one of permanent abode and adopting it as the domicile. Change of residence from one place [to] another is strong evidence of an intention to change place of domicile but standing alone is insufficient and while a person may have two places of residence, he may have only one domicile. In re Knowlton’s Will, 192 Misc. 1032, 1038 (Sur. Ct. 1948). The Second Department has summarized the law on the change of domicile as follows: The law is well settled that an existing domicile continues until a new one is acquired. It is incumbent upon the party seeking to prove a change of domicile to demonstrate such a change by clear and convincing evidence. To meet this burden, the movant must establish the decedent’s intention to effect a change of domicile from her acts, statements, and conduct (see, Matter of Pingpank, 134 AD2d 263, 265, 520 N.Y.S.2d 596). “The element of intent is essential” (Laufer v. Hauge, 140 AD2d 671, 673, 528 N.Y.S.2d 878). The question of whether there has been a change of domicile is a mixed question of fact and 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, 394 N.Y.S.2d 621, quoting Matter of Newcomb, 192 NY 238, 250, 84 N.E. 950). “In order to acquire a new domicile there must be a union of *616 residence and intention” (Matter of Newcomb, 192 NY 238, 250, 84 N.E. 950, supra). Matter of Urdang, 194 AD2d 615, 615-16 (2d Dept. 1993). In determining one’s domicile, “No single factor is controlling and the unique facts and circumstances of each case must be closely considered.” In re Estate of King, 147 AD3d 1286, 1288 (3d Dept. 2017); see, e.g., Dublin v. Dublin, 150 Misc. 694, 696 (Sup. Ct. 1934) (holding that the place of voting and payment of taxes is not controlling in determining one’s domicile); accord Matter of Est. of Gadway, 123 AD2d 83, 86 (3d Dept. 1987). In domicile disputes, actions speak louder than words. Thus, it has been held that the conduct of a person is the most important evidence of his or her intention to acquire a domicile in a place. See In re Bourne’s Est., 181 Misc. 238, 247 (Sur. Ct. 1943), decree affd. sub nom. In re Bourne’s Est., 267 AD 876 (2d Dept. 1944), aff’d sub nom. In re Bourne’s Est., 293 NY 785 (1944). In any case of discrepancy between declarations and actions, declared intentions yield to the conclusion drawn from the actions. In re Bourne’s Est., 181 Misc. 2 at 247. Intent being the key to establishing domicile, it is important to note that an incapacitated person cannot form the intent required to change his or her domicile. See In re Estate of Bonora, 47 Misc 3d 1007, 1011 (Sur. Ct. 2014), aff’d sub nom. In re Bonora, 123 AD3d 703 (2d Dept. 2014); Matter of Urdang, 194 AD2d 615, 616 (2d Dept. 1993). Significantly, neither a guardian nor an attorney-in-fact can supply the necessary intent to change domicile for the incapacitated person unless the order or instrument appointing them supplies them with such power. See, e.g., In re Guardian & Prop. of Lillian, 20 Misc 3d 215, 216-17 (Sup. Ct. 2008), rev’d sub nom. In re Lillian U., 66 AD3d 1219 (3d Dept. 2009) (holding that a guardian appointed pursuant to Article 81 of the Mental Hygiene Law has no power to change the domicile of the incapacitated person without court authorization, even though power is given to change the place of abode, since the court’s order appointing the guardian gave only power to choose the ward’s abode, but did not authorize a change of domicile, the respondent’s domicile did not/could not change); Matter of Estate of Wilhelm, 134 Misc 2d 448, 452 (Sur. Ct., 1987) (stating that certain authority is non-delegable when it deals with matters “peculiarly personal,” such as domicile, where it does not impinge on the efficacy of the powers of the attorney-in-fact; thus, if the question of domicile is one of personal concern and has no bearing on the actions of the agent to care for the principal, then the agent has no authority to act in changing domicile); compare Stern v. Daines, No. 3928/09, 2009 WL 4735683 (Sup. Ct. 2009) (agent had authority to change domicile where the addendum to the durable power of attorney expressly gave agent authority to act in the principal’s name in matters pertaining to “Social Security, Medicare, Medicaid, and all governmental benefits, to represent me or obtain representation for me at hearings and appeals”, and “[t]o make decisions regarding my domicile or residence including executing documents or issuing statements concerning my intentions as to my residency or domicile”). It is undisputed that the Decedent never actually resided in Greenwood Lake, New York (before or after moving to New Jersey) and that it was, admittedly, “impossible” for her to reside there. Since there must be “a union of residence and intention” in order to change domicile (see Urdang, supra), the Decedent’s failure to reside at Gerard’s Greenwood Lake address made reacquiring a New York domicile at Greenwood Lake impossible. The Decedent’s sale of her home in New York and apparent decision to move to New Jersey on a long-term basis are actions that show her intent to abandon her original domicile in New York and change her domicile to New Jersey. She resided exclusively at a single residence in New Jersey for five years (according to Gerard) or eight years (according to Joseph) thereafter, without any demonstrated plan or effort to return to New York. On the other hand, Gerard argues, the Decedent maintained his Greenwood Lake address as her New York “residence” by listing it as her residential address on her tax forms, financial accounts, benefit accounts, etc., and by paying New York State income taxes while she resided in New Jersey. As discussed above, however, none of these facts are controlling. See Dublin, Gadway, supra. The Court finds that, on this record, there is a question of fact concerning the Decedent’s capacity to form the required intent behind her actions. Specifically, it appears from the submissions that the Decedent may have suffered from dementia, at some level, as early as 2013, thus creating an issue of fact as to whether she possessed sufficient capacity to establish a new domicile during the relevant time. Additionally, Gerard has not presented sufficient evidence to support a finding that he, as attorney-in-fact, had the authority to change the Decedent’s domicile for her. See Lillian, Wilhelm, Stern, supra. For these reasons, a hearing will be required. Since the Decedent is presumed to be competent at the time(s) she sold her house and moved to New Jersey, the Petitioner will have the burden of proving Decedent’s incompetence at the relevant time(s) the action(s) took place. See Matter of Est. of Obermeier, 150 AD2d 863, 864 (3d Dept. 1989). B. Jurisdiction over a non-domiciliary decedent. The Surrogate’s Court, in its discretion, may exercise jurisdiction over a non-domiciliary decedent’s estate where the decedent leaves property in the state or it may grant original probate to the will of a non-domiciliary decedent. See SCPA §206(1), SCPA §1605; see, e.g., Matter of Est. of Gadway, 123 AD2d 83 (3d Dept. 1987); In re MacKean’s Will, 259 AD 728 (2d Dept. 1940); In re Petras, No. 734/95, 1995 WL 17962460 (Sur. Ct. 1995); In re Beckmann, No. 3281-86, 1987 WL 1451553 (Sur. Ct. 1987). SCPA §206(1) states that, “The surrogate’s court of any county has jurisdiction over the estate of any non-domiciliary decedent who leaves property in the state, or a cause of action for wrongful death against a domiciliary of the state.” When scrutinizing “property” for the purposes of applying SCPA §206, financial accounts and the like are deemed to be “intangible property” and, as such, their situs is the decedent’s domicile at the time of death. See In re Est. of Baer, 46 AD3d 1368, 1370 (4d Dept. 2007); In re MacKean’s Will, 259 AD 728 (2d Dept. 1940); In re Estate of Walton, No. 2016-1255, 2016 WL 6809316 (Sur. Ct. 2016). Thus, where the decedent dies a non-domiciliary of New York leaving only intangible assets in New York, there is no basis for the Surrogate’s Court to exercise jurisdiction over the estate pursuant to SCPA §206(1). See, e.g., In re Estate of Walton, No. 2016-1255, 2016 WL 6809316 (Sur. Ct. 2016) (decedent, as a result of being domiciled in Ohio at the time of death, left no property in the State of New York for the purposes of SCPA §206 where the only alleged property left in New York was a bank account, the situs of which, as intangible property, became the same as the decedent’s domicile at the time of death); see also In re Est. of Baer, 46 AD3d at 1370. SCPA §1605(1) states that, “A will of a non-domiciliary which upon probate may operate upon any property in this state and is deemed by the laws of this state to have been validly executed for probate in this state, may be admitted to probate in the same manner as any other will may be admitted to probate under this act…” In determining whether to entertain an application for original probate of a will of a non-domiciliary which has not yet been admitted to probate in the decedent’s domicile, the Surrogate’s Court should examine the nature of New York’s contacts with the decedent and his/her estate, including the following: (i) the location of decedent’s assets; (ii) the residence of the nominated fiduciaries and beneficiaries; (iii) the expense of proving the will in the decedent’s domicile; (iv) the decedent’s request, if any, for New York probate; (v) the good faith of the proponents; and (vi) what weight should be given to the fact that the decedent’s domicile has already assumed jurisdiction over the decedent’s estate. See In re Estate of Baer, 46 AD3d 1368, 1369-70 (4d Dept. 2007). Thus, for example, the Surrogate’s Court properly exercised its discretion in granting original probate of the will of a non-domiciliary where (1) decedent owned real estate in New York worth $67,500, (2) her estate included significant intangible assets in New York, such as bank accounts valued at $228,722.37 and real estate mortgages valued at $84,497.64, (3) the will was executed in New York in accordance with New York law with the assistance of a New York attorney and was witnessed by New York residents, (4) there were statements in the will that decedent was a New York resident and that her residuary legatees should be determined in accordance with New York law, (5) ten out of eleven beneficiaries under the will resided in New York, (6) the beneficiaries who together received the clear majority of the estate sought probate in New York and (7) Florida law prohibited the petitioner from serving as executor. See Matter of Est. of Gadway, 123 AD2d 83, 87 (3d Dept. 1987). Similarly, the Surrogate’s Court should have dismissed the objection to probate and admitted the will to probate in New York, irrespective of the actual domicile of the deceased, both as a matter of law and in the exercise of discretion, where (1) all of the deceased’s assets were located in New York, (2) her personal property was located in New York County, (3) her will contained an express declaration that she was a resident of New York, (4) the will was drafted by a New York attorney, executed in New York, witnessed by New York residents, (5) the will was not probated elsewhere, (6) the distributees all resided within or close to New York City, (7) the decedent’s spouse and two of the three adult residuary legatees preferred probate in New York, and the objecting party spoke for only one-seventh of the residuum and (8) the named fiduciaries would be disqualified from acting in the state in which the decedent died. See In re Goldstein’s Will, 34 AD2d 764 (1st Dept. 1970). In comparison, the Surrogate’s Court did not properly exercise its discretion in granting original probate of a will to a non-domiciliary where (1) the court improperly attributed ownership of trust property to the decedent, (2) the decedent’s bank accounts constituted intangible property with their situs in decedent’s domicile of Vermont at the time of death, (3) two of the three beneficiaries were non-residents of New York, (4) the Vermont statute did not discriminate against a domiciliary of New York acting as a fiduciary, (5) there was no indication that it would be more expensive to probate the will in Vermont, (6) although the will was drafted and executed in New York, it did not contain a request to probate the will in New York and (7) the Vermont court had already accepted jurisdiction over the estate. In re Estate of Baer, 46 AD3d 1368, 1370-71 (4d Dept. 2007). Here, the Decedent’s estate (1) consists primarily of, if not completely of, an intangible asset [i.e., a UBS Financial Services investment account, in an unestablished amount, but perhaps in excess of one million dollars], the situs of which is the Decedent’s yet-to-be-determined domicile at the date of her death, (2) the purported 2014 Will sought to be probated here is not the most recent purported will, (3) the 2015 Will appears to be in the process of being probated in New Jersey, (4) the 2015 Will was executed and witnessed in New Jersey and it contains no request to be probated in New York, (5) four of the five estate beneficiaries reside in New Jersey, (6) there is no indication that the laws of New Jersey would prevent Petitioner Gerard Matarazzo from serving as co-executor, (7) it appears from the totality of the circumstances that probate would prove less costly to the estate in New Jersey and (8) neither Petitioner Gerard Matarazzo’s nor Movant Joseph Matarazzo, Jr.’s good faith or bad faith is sufficiently established in this motion record. Accordingly, if it is determined, after a hearing, that New York was the Decedent’s domicile at the time of her death, this Court would have jurisdiction over probate matters without need to exercise jurisdiction under SCPA §§206 or 1605. Alternatively, if it is determined that New York was not the Decedent’s domicile at the time of her death, this Court, in its discretion, would decline to entertain Petitioner’s petition to probate the 2014 Will pursuant to both SCPA §206 and SCPA §1605. CONCLUSION For the reasons stated above, the Court requires a hearing on the issue of domicile before granting or denying the ultimate relief sought in the motion to dismiss. As a result, the attorneys for the parties herein are hereby directed to appear for a virtual pre-hearing conference to be held on August 18, 2021 at 1:30 p.m. This constitutes the Decision and Order of the Court. Dated: July 20, 2021
