Matter of Hill
This text of 2024 NY Slip Op 33493(U) (Matter of Hill) is published on Counsel Stack Legal Research, covering Surrogate's Court, Richmond County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Matter of Hill 2024 NY Slip Op 33493(U) August 13, 2024 Surrogate's Court, Richmond County Docket Number: File No. 2024-885 Judge: Matthew J. Titone Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND --------------------------------------------------------------------------x In the Matter of the Estate of
MARIE HILL, File No. 2024-885
Deceased. --------------------------------------------------------------------------x
In the current proceeding, Mark Hill, (hereinafter “petitioner”), through counsel, filed an
attorney affirmation of domicile on July 23, 2024, requesting that this court deem decedent
Marie Hill a domiciliary of New York State at the time of her death, accept jurisdiction over the
instant proceeding, and for such other and further relief as this court may deem just, equitable
and proper under the circumstances.
Findings of Fact Following the death of decedent’s husband in December 2020, her mental and physical
health deteriorated. Decedent became incapable of caring for her financial and personal well-
being. With decedent’s consent and understanding, she executed a Power of Attorney designating
her son, the petitioner, as her agent to handle her affairs.
In February 2021, because of decedent’s failing memory and inability to care for herself,
petitioner exercised the Power of Attorney moving her from the family home on Staten Island,
New York to a healthcare facility near the home of petitioner’s sister, Nancy Hill Friedman,
(hereinafter “Nancy”), in Middletown, New Jersey. When it became apparent that decedent
continued to deteriorate physically and mentally, petitioner, with Nancy’s consent, sold the
family home and used the proceeds to sustain decedent at the facility in Middletown. Decedent
passed away on March 18, 2024. Her death certificate listed her “residence” as the healthcare
facility.
[* 1] On July 17, 2024, petitioner filed with this court a petition to administer decedent’s
estate, to which, Nancy waived and consented to the application and the jurisdiction of this court.
On July 23, 2024, petitioner, through counsel, filed an attorney affirmation of domicile, with
exhibits, requesting that this court deem the decedent a domiciliary of New York State at the time
of her death, that this court accept jurisdiction of the instant proceeding, and for such other and
further relief as this court may deem just, equitable and proper under the circumstances. The
affirmation of domicile was requested of petitioner, since the death certificate listed her residence
in the state of New Jersey, and an explanation was required.
Relevant Law
The Surrogate’s Court Procedure Act defines domicile as “[a] fixed, permanent and
principal home to which a person wherever temporarily located always intends to return.” SCPA
§ 103[15]. “The determination of an individual’s domicile is ordinarily based on conduct
manifesting an intent to establish a permanent home with permanent associations in a given
location.” Matter of Clute v. Chu, 106 A.D.2d 841, 843, 484 N.Y.S.2d 239 (3d Dept. 1984).1 A
person must not only change their residence but intend to abandon the former domicile and
acquire another to effect a change of domicile. Matter of Ratkowsky v. Browne, 267 A.D. 643,
646, 47 N.Y.S.2d 905 (3d Dept. 1944)2. The party seeking to prove a change of domicile carries
the burden to demonstrate such a change by clear and convincing evidence. Matter of Urdang,
194 A.D.2d 615, 615, 599 N.Y.S.2d 60 (2d Dept. 1993).
1 In Clute v. Chu, the court held that the Tax Commission’s determination that petitioner did not change domicile was reasonable because petitioner spent more than a year in the original home and continued to fulfill professional responsibilities in the original domicile, and petitioner’s filed declaration of domicile was therefore unavailing. 2 In Ratkowsky v. Browne, the court held that being adjudged “incompetent” by order of the Supreme Court rendered the ward incapable of changing their domicile.
[* 2] To meet this burden, establishing a decedent’s intention to effect a change of domicile is
essential, with such intention demonstrated from the decedent’s acts, statements, and conduct. Id.
Evidence showing that decedent intended to remain a domiciliary of a prior residence may be
overcome by a larger and consistent body of evidence of the decedent’s intent to change that
domicile such as familial or health motivations. In re Ranftle, 108 A.D.3d 437, 441, 969
N.Y.S.2d 48 (1st Dept. 2013). In In re Ranftle, the court held that decedent intended to change
domicile because the scattered evidence to the contrary, such as decedent’s failure to change
voter registration and homestead declaration, was overcome by a large and consistent body of
evidence that decedent was motivated by terminal illness and the new domicile’s recognition of
same-sex marriage to change domicile. Id.
Generally, “an incapacitated person’s admission into a health-care facility does not cause
a change of domicile if the incapacitated person is unable to express an intention to establish a
new domicile.” Urdang, 194 A.D.2d at 616. A decedent executing a Power of Attorney that gives
the appointed agent authority to choose the decedent’s place of abode does not grant the
appointed agent authority to change decedent’s domicile absent an expressed intention to change
domicile. See Matter of Bonora, 123 A.D.3d 699, 703, 998 N.Y.S.2d 400 (2d Dept. 2014).
Furthermore, the sale of a decedent’s former home is not, in and of itself, dispositive of intent to
abandon a former domicile. See Urdang, 194 A.D.2d at 616.
Conclusions of Law
In the attorney affirmation of domicile, petitioner submits that there is no evidence that
the decedent intended to establish a new domicile in the State of New Jersey. Petitioner exercised
the Power of Attorney, with consent of Nancy, over the decedent to sell decedent’s home in New
[* 3] York State and used the funds from that sale to sustain decedent at a healthcare facility in New
Jersey.
Petitioner establishes that with the decedent being moved from New York to New Jersey
by way of Power of Attorney, evidence of the decedent’s intention is lacking to effect a change of
domicile to New Jersey. As discussed supra, a person’s admission into a healthcare facility does
not cause a change of domicile if they are unable to express their intention to establish a new
domicile. Matter of Urdang, supra; see also Matter of Bonora, supra. Absent other evidence of
the decedent’s expressed intention to change her domicile, decedent executing this Power of
Attorney granting petitioner authority to sell decedent’s Staten Island home also does not serve
as evidence of her intent to abandon her former New York domicile.
With no evidence to the contrary, where the decedent was moved out of state for medical
treatment, herein decedent’s diminishing mental capacity, there is no issue regarding decedent’s
domicile, despite the sale of decedent’s residence since residence is not equal to domicile.
Conclusion
Petitioner has established that the decedent was a domiciliary of New York State at the
time of her death.
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