In this pending probate proceeding, the decedent died on August 8, 2014. A document dated September 21, 2004 purporting to be the Last Will & Testament has been filed for probate by Miroslaw (Mike) Grunwald, son of the decedent and the nominated executor therein. Subsequently, Oliwia Grunwald, decedent’s granddaughter from a predeceased son, filed an Order to Show Cause seeking to transfer these proceeding to Kings County pursuant to SCPA 206(1)(a) and SCPA (206)(3), as well as various other discovery related reliefs. Oliwia argues that the decedent was domiciled in Poland at the time of her death and as a non-domiciliary, her estate must be heard in the county where property is located. Since the decedent owned real property located in Kings County, Oliwia argues that is the proper forum for this matter. Mirloslaw naturally opposes this relief and argues that his mother has been a domiciliary of Richmond County for over two decades.All of the Surrogate’s Courts in New York have subject matter jurisdiction of the estates of non-domiciliaries who left property in New York (SCPA 206). Undeniably, every Surrogate in New York has subject matter jurisdiction over the estate of any New York domiciliary, but the county of his domicile is the proper venue (SCPA 205). The concept of domicile is therefore very important in the Surrogate’s Court. It is predicated on the idea that a person forms ties with one place sufficient to make that place his “home”. Domicile then is the permanent home to which a person, during an absence, always intends to return. A person may have many residences, but can have only one domicile (Matter of Newcomb, 192 NY 238).Indeed, when a decedent has multiple homes, his domicile is a mixed question of law and fact to be decided on the unique circumstances of each case, such as where he or she voted, where his or her car were registered, and where he or she filed income taxes (In re Estate of Brunner, 41 NY2d 917; Matter of Newcomb, 192 NY 238; In re Winkler v. Winkler, 171 AD2d 474).The Court may hold a hearing to determine the issue of domicile when there is a dispute between the parties. In the instant proceeding, after having heard oral argument on the issue of domicile and the various discovery motions and after having reviewed all of the papers heretofore submitted herein, both in support of the motion and in opposition thereto, the Court finds the existence of conflicting issues of fact regarding the issue of domicile which can only be resolved by a hearing. All discovery issues are held in abeyance pending the outcome of the domicile hearing.The hearing will focus on whether or not the decedent’s estate should be viewed as a domiciliary or a non-domiciliary estate, and thereafter determine which is the proper county for the probate petition.The Court further advises counsel that where a party claims that the decedent changed his/her domicile, the burden is on that party to prove the change (Matter of Shindell, 60 AD2d 393, affd 55 NY2d 655), and the proof must be made by clear and convincing evidence (Matter of Gadway, 123 AD2d 83).Accordingly, this matter is restored to the Court’s Calendar of Wednesday, January 30, 2019 at 9:30 a.m. for the selection of a hearing date.This decision shall constitute the Order of the Court.Dated: January 15, 2019
