The Third Department, reversing Surrogate’s Court, determined a hearing should be held to determine decedent’s domicile. Decedent was a world traveler who owned property in Germany and executed a holographic will in Germany. If Germany was his domicile, New York may recognize the holographic will:
… [D]ecedent was initially domiciled in New Jersey before he left the United States in 2014 … . Since decedent’s domicile had been established, “unlike mere physical residency, [domicile] is presumed to continue until a new one is acquired and is controlled by the subjective intent of the party claiming domicile” … . This determination generally involves questions of both fact and law “and is based upon ‘conduct manifesting an intent to establish a permanent home with permanent associations in a given location'” … . Where there are particularly unique facts, like here with decedent being a perpetual world traveler, domicile is often “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” … .
Domicile is particularly important where, like here, there is a petition to probate a holographic will. Although there are limited circumstances where a holographic will may be validly executed in New York (see EPTL 3-2.2), New York courts may nevertheless accept holographic wills that are “executed and attested in accordance with the local law of . . . [t]he jurisdiction in which the testator was domiciled, either at the time of execution or of death” (EPTL 3-5.1 [c] [3] …). In doing so, New York courts may take judicial notice of the laws of other countries and, as a matter of comity, may accept the findings of foreign courts (see CPLR 4511 [b] …).
… [T]he record was incomplete and must be further developed as it relates to the proceedings in Germany. Specifically, we are concerned over the omission of the certificate of inheritance — which petitioner argues established decedent’s domicile in Germany — as such document may, if afforded comity, be dispositive … . Matter of Noichl, 2022 NY Slip Op 03558, Third Dept 6-2-22
Practice Point: Determination of a person’s domicile is a question of law and fact, depending in part on the person’s intent. Here, if Germany was decedent’s domicile at the time the holographic German will was executed, or at the time of death, New York may recognize the German holographic will. Matter sent back to develop a factual record on the domicile issue.