Petitioner, Cecelia C. Reilly, is the Nominated Executrix of the Last Will and Testament of Mary E. Dudla ("decedent"). Objectant, Shawn P. Dudla, is a son of the decedent and Ms. Reilly is a daughter of decedent. There are three (3) additional children, all of whom take an equal share of the decedent's personal property under Article Third of the Will with Article Fourth of the Will disposing of the residuary, both real and personal property, by distribution to the Mary E. Dudla Family Trust (herein "Trust"), dated November 5, 2019, to be further distributed under the terms of the Trust.^[FN1] Petitioner seeks to admit to probate the original of the Last Will and Testament of the decedent dated November 5, 2019. Said Will was previously filed with the Court for safekeeping and thereafter filed with the Court on January 27, 2023 pending probate. A preliminary probate petition was filed on April 23, 2024 and preliminary letters testamentary were issued to Ms. Reilly by this Court on May 29, 2024 and remain in effect.

An amended probate petition was filed on May 24, 2024 and a citation was issued thereafter. All parties were served (or waived) and an appearance on the return date on the citation was held July 10, 2024 at which point the Court had determined that service of process [*2]was complete and that the Court has jurisdiction of this matter and the necessary parties thereto. At such appearance, Mr. Levy appeared on behalf of Petitioner and Mr. Dudla appeared pro se to contest the venue, the Will, and the appointment of the proposed fiduciary. Thereafter a scheduling order issued for the purposes of Mr. Dudla to file a motion in regard to venue ^[FN2] . The Court is in timely receipt of both the moving papers of Mr. Dudla, the opposition papers submitted by Mr. Levy, and Mr. Dudla's reply thereto.

To the extent that Objectant's papers dispute this Court's subject matter jurisdiction, such argument is denied.

The Surrogate's Court of any county has jurisdiction over the estate of a decedent who was domiciled in the State of New York upon her death, (see SCPA §205). There is no dispute that the decedent was a domiciliary of the State of New York, as such, this Court is conferred with subject matter jurisdiction. Even if there was error in the specification of the decedent's domicile on the death certificate, the Court had (and continues to have) the jurisdiction to issue preliminary letters to Petitioner and preside over this matter. (Matter of King, 147 AD3d 1286 [3d Dep't 2017]).

As such, Objectant's objection to the issuance of preliminary letters is dismissed.

Central to the Objectant's argument for a change of venue are allegations that the death certificate of the decedent filed with this Court is "altered and fraudulent." The Objectant bases this argument on a copy ^[FN3] of a death certificate that the Objectant states was procured on January 3, 2023 which such certificate shows the decedent's residence as 26 Russell Court, Troy, NY 12182. The Court is in possession of an original Certified Certificate of Death ^[FN4] filed in this Court on April 25, 2024, which shows the decedent's address at death as 34 Werner Road, Clifton Park, NY 12065. Such certificate indicates that it was amended on January 25, 2023 to effect such change of address. No reason for the change is given by either party and other than the death certificates filed with the Court and submitted as part of this motion, no other information has [*3]been provided by the registrar.

This Court requires the physical filing of a certified death certificate to, among other reasons, validate the residence of the decedent at death. The Chief Clerk and her designees presumptively rely on such certified government records in order to effectively administer and process the filings of this Court. Indeed, preliminary letters were granted, in part, based upon the presumption of reliability of the information contained within the death certificate.

For the effective administration of aspects of the lives of citizens of this State, public policy requires that certain governmental records carry a presumption of accuracy. This is so that such records can be relied upon by other governmental agencies and citizens of the State in conducting their business. Indeed, NYS Public Health Law §4103(2) codifies this important principle and provides that:

"[a]ny copy of the record of a birth or of a death or any certificate of registration of birth or any certification of birth, when properly certified by the local registrar, shall be prima facie evidence of the facts therein stated in all courts and places and in all actions, proceedings, or applications, judicial, administrative or otherwise, and any such certificate of registration of birth or any such certification of birth shall be accepted with the same force and effect with respect to the facts therein stated as the original certificate of birth or a certified copy thereof" (emphasis added).

"[a] certified copy of the record of a birth or death, a certification of birth or death, a transcript of a birth or death certificate, a certificate of birth data or a certificate of registration of birth, when properly certified by the commissioner or persons authorized to act for him, shall be prima facie evidence in all courts and places of the facts therein stated" (emphasis added).

The Court finds that the Objectant has failed to raise any facts which would invalidate the legal presumption that is afforded the prima facie evidence of the biographical facts contained within the amended Certified Certificate of Death filed with this Court. Based upon the foregoing analysis, the Court shall consider the filed Certified Certificate of Death to be valid in all respects.

A search of the records of the court shows that litigation surrounding the affairs of the decedent, her last directives, and her property has previously been brought by Mr. Dudla during her lifetime. In 2020, an Article 81 guardianship proceeding was commenced by Mr. Dudla against the decedent which resulted in a decision of the Supreme Court, Saratoga County, (Kupferman, J.)^[FN5] rendered and entered on November 13, 2020 (hereinafter the "Article 81 decision"). This proceeding was sealed by order of Judge Kupferman issued on September 1, 2020 and entered on September 4, 2020 under Index No.: 2020-860. Following an in camera [*4]review of the sealed Article 81 decision by the Court, the Court has determined that the issues litigated and decided in that proceeding have direct bearing on and, in fact, are res judicata to the issues surrounding venue and the validity of the decedent's testamentary documents.

The Surrogate's Court is conferred with broad Constitutional jurisdiction in law and equity and is authorized by SCPA §201 to:

"[e]xercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires"

The law is clear that if a matter relates to the affairs of a decedent or the administration of an estate, the Surrogate's Court has jurisdiction (NY Const, art VI, § 12 [d]; Matter of Piccione, 57 NY2d 278, 442 N.E.2d 1180, 456 N.Y.S.2d 669). Furthermore, the proceedings enumerated in the SCPA are not exclusive, and the Court is empowered in any proceeding to exercise its jurisdiction notwithstanding that the jurisdiction sought to be exercised is or may be incidental to a different proceeding, (see SCPA §202). The Surrogate's Court can exercise the same powers the Supreme Court has with respect to matters within its subject matter jurisdiction, (see SCPA §209(10)).

As such, the Court, on its own motion, in order to serve fairness and the orderly administration of justice, makes the finding that the records of the decedent's Article 81 proceeding have direct bearing on the issues to be litigated in this matter; and specifically finds that the interests in disclosure now outweigh considerations which may have, in 2020 during the decedent's lifetime, justified secrecy to protect the decedent's privacy.

As such, the Court exercises its inherent power to unseal the records contained in the file of the Saratoga County Supreme Court under Index No.: 2020-860 as they have a direct bearing on the affairs of the decedent's estate. The Court will upload and e-file a copy of the underlying decision to the Surrogate's Court NYSCEF system contemporaneous with this Decree for the convenience of the parties.

The Article 81 decision is instructive in that on the first page of the same, the court therein footnotes that "[a]t present, the AIP is residing with her daughter, Cecelia Reilly at her home of 26 Russell Court in Troy, New York following her release from a hospital stay. Previously the AIP had resided at her residence of 34 Werner Road in Clifton Park, New York." The court continues to note that "Petitioner (Objectant herein) likewise resides at the 34 Werner Road address as well." The court goes on to list the decedent's then property interests of the 34 Werner Road property, a property on Rt. 146 in Clifton Park and one in Fort Ann. It would appear at that time that the only property the decedent resided in which she owned was the 34 Werner Road property.

The underlying forty-eight (48) page Article 81 decision reflects a tumultuous family dynamic by and between the decedent, Objectant, and Objectant's siblings. The court notes that [*5]the decedent vehemently objected to the proceeding ^[FN6] . The proceedings were described in the decision by Judge Kupferman at times as hostile and contentious, with the court noting the palpable acrimony between Objectant and Petitioner.

Of particular relevance, it was revealed that the Objectant was then (and apparently continues) to reside in the decedent's home at 34 Werner Road. The Objectant was unable to produce any proof of contribution to household expenses and acknowledged that he did not pay any of the mortgage, taxes or carrying costs. All of these expenses would appear to have been borne by decedent.

Decedent's then bankruptcy attorney testified in the Article 81 proceeding that the decedent would have been entitled to a "homestead exemption" on one of the Saratoga County properties. This homestead exemption is codified at CPLR §5206 and protects a sum (presently up to $125,000 worth of equity) " above liens and encumbrances, owned and occupied as a principal residence..." (emphasis added).

The determination of an individual's domicile "is generally a mixed question of fact and law" (Matter of King, 147 AD3d 1286, 1288 [3d Dept 2017], quoting Matter of Brunner, 41 NY2d 917, 918 [1977]), "and is based upon 'conduct manifesting an intent to establish a permanent home with permanent associations in a given location' " (Matter of King, 147 AD3d 1286, 1288 quoting Matter of Clute v Chu, 106 AD2d 841, 843 [3d Dept 1984]). "Where facts are conflicting, the presumption is strongly in favor of an original, or former, domicile, as against an acquired one" (Matter of Ratkowsky v Browne, 267 App Div 643, 646 [3d Dept 1944]; see Matter of Bodfish v Gallman, 50 AD2d at 458).

Thus, the Article 81 decision makes clear that as of November of 2020, the decedent was residing at her daughter's home in Troy recuperating from a hospital stay. Based upon the testimony elicited at the hearing, it would appear that she remained domiciled in Saratoga County where she intended to return to one of her Saratoga County properties in order to take advantage of the homestead exemption for the properties eventual planned liquidation in bankruptcy. This testimony is preserved for the record and clearly speaks to the decedent's then intentions via her bankruptcy counsel.

Having established that decedent was a domiciliary of Saratoga County in 2020, the scope of the Court's inquiry only needs to focus on the time-period between November of 2020 and the decedent's death of November 30, 2022, a period of two years.

The ultimate outcome of the court's Article 81 decision was that the decedent was found to be competent in all aspects of her life, both at the time of the proceeding and, critically, as will be discussed infra, at the time that she executed her November 5, 2019 Will and other advanced directives.

In his decision, Judge Kupferman made clear his observations and findings as to the behavior of the Objectant to the decedent noting that "[t]hat the Court was particularly troubled by the manner in which [Objectant] was observed to speak to and about [decedent]" noting that the commentary from the Objectant to the decedent was at best "condescending" to the "downright insulting". The court also specifically found that there was an inextricable conflict between the Objectant and decedent with Objectant residing in the decedent's property in [*6]Saratoga County.

Given the Objectant's history of behavior towards the decedent two years prior to her death as set forth in Judge Kupferman's decision, and his apparent hostile occupancy of the decedent's properties in Saratoga County ^[FN7] , it is not surprising to this Court that the decedent did not wish to stay at her domicile and continued to reside with her daughter in Rensselaer County. This would be reasonable under the circumstances especially given the Objectant's filing of an unfounded Article 81 proceeding against her and her history of staying with her daughter following hospital admissions at Samaritan Hospital in Troy, New York.

The fact that a person resides in one county does not make them a domiciliary of that county. It has long been recognized law that a person may have many residences, but only one domicile. In Surrogate's Court practice under the SCPA, "domicile" is specifically defined as: "A fixed, permanent and principal home to which a person wherever temporarily located always intends to return" [SCPA §103(15)]. A decedent does not even have to have a physical residence in a county for there to be a determination that such county is her domicile. In Matter of Schellbach, 2017 NY Slip Op 32059 [Sur. Ct. Nassau County 2017] the Court explained that "[t]he sale of an individual's home while she is at a nursing facility may preclude the individual from returning to that home. It does not, however, preclude the individual from moving back to the community in which her home was located, and where she continued to maintain connections in the event that her health would allow her to return", citing, (Matter of Urdang, 194 AD2d 615 [2d Dep't. 1993]). A person's domicile is, therefore, the place the person is making home indefinitely (see, Matter of Brunner, 41 NY2d 917 [1977]). An intent to change one's domicile must be demonstrated by one's own "acts, statements and conduct" (Matter of Pingpank, 134 AD2d 263, 265 [2d Dept 1987]). "Domicile, once established, unlike mere physical residency, is presumed to continue [until a new one is acquired] and is controlled by the subjective intent of the party claiming domicile" (Black v Black, 108 AD3d 842, 843 [3d Dept 2013], quoting Guedes v Guedes, 45 AD3d 533, 534 [2d Dept 2007] [emphasis added]).

Indeed, the decedent appears to have had two residences during her life in Saratoga County where she both lived and intended to have one be her domicile as is evinced by her stated desire to declare a homestead exemption for bankruptcy planning. This fact is further supported by the decedent's knowing and willing transfer of her real properties by deed into a trust. A reading of the trust document filed with this Court shows that the decedent specifically reserved herself the right to the "lifetime use, occupancy and possession of residential real property", two of which properties deeded to the trust were in Saratoga County where the decedent had resided with Objectant prior to the fallout in their relationship.

Other indicia of the venue being appropriate in Saratoga County are as follows: Her Will was executed in Saratoga County and filed with the Clerk of the Saratoga County Surrogate's Court; the petition indicates that the sole asset of the estate is a vacant parcel of land on Werner [*7]Road that has an assessed value of $41,176.00; all witnesses to the Will are claimed to reside in Saratoga County ^[FN8] ; Objectant resides in Saratoga County; and preliminary letters were issued by this Court. Presumably, the Petitioner is in the process of using her preliminary letters to marshal the assets and obtain information on the liabilities of the Estate. Indeed, an appeal is pending in Saratoga County Court regarding the eviction of the Objectant from a home in Saratoga County now owned by the Trust (to whom the Objectant is also a partial beneficiary of). To now change venue would be inconvenient to witnesses, parties, and the preliminary fiduciary. Such a change would also place increased expenses on an estate with limited assets.

An existing domicile continues until a new one is acquired and it is incumbent upon the party seeking to prove a change of domicile to demonstrate such a change by clear and convincing evidence (see, Matter of Newcomb, 192 NY 238, 250 [1908]; Matter of Ingle v Tax Appeals Trib. of the Dept. of Taxation & Fin. of the State of NY, 110 AD3d 1392, 1393 [3d Dept 2013]; Matter of Urdang, 194 AD2d 615, 615 [2d Dept 1993]; Matter of Gadway, 123 AD2d 83, 85 [3d Dept 1987]; Matter of Bodfish v Gallman, 50 AD2d 457, 458-459; Matter of Lowenberg, 53 Misc 3d 1214[A], 2016 NY Slip Op 51642[U] [Sur Ct, Queens County 2016]). Based upon the foregoing, the Court finds that the Objectant has failed to meet his burden to prove by clear and convincing evidence that the decedent had changed her domicile from Saratoga County to Rensselaer County. Likewise, his motion for a finding of improper venue and change of venue is denied.

Turning to the remainder of the Objectant's contentions in the motion, it appears from the voluminous submissions that the Objectant takes issue with the validity of the decedent's Last Will and Testament and a related Trust Agreement based upon arguments that the decedent: (1) did not have capacity at the time of the execution of the November 5, 2019 Will and Trust, that (2) the Will and Trust were procured by undue influence by the drafting Attorney Brian Lyda, Petitioner, her husband, Andrew Reilly, and the other siblings of Petitioner, William Dudla and Alan Dudla. Ordinarily, such Objections once made would be heard in a SCPA §1404 hearing wherein the draftsperson and witnesses would testify as to the preparation and execution of the Will and their observations and interactions with the decedent.

This case offers the unique circumstance where there has already been a judicial determination as to the preparation and proper execution of the Will as well as its validity. In the Article 81 decision, it is clear that the focus of the hearing as ordered by Judge Kupferman was to be on the events surrounding the preparation and execution of the decedent's estate planning documents. After hearing extensive testimony from the draftsperson and witnesses, in dismissing the Objectant's then Article 81 Petition against the decedent, Judge Kupferman concluded and expressly found that:

"the Advance Directives and Trust were appropriately executed and effectuated the [*8][decedent's] testamentary plan through her Last Will and Testament. Further, the Court finds that the will execution ceremony was performed in [decedent's] presence and understanding, free from coercion or undue influence and that the [decedent] had the capacity to know, understand and appreciate the nature of her family, assets and bounty and that the Last Will and Testament accurately and appropriately reflects the same."

Judge Kupferman also concluded (as does this Court) that the Will divided the estate equally between all children of the decedent (Objectant included). Indeed, Objectant himself states at paragraph sixty-two (62) of his Objections that this was decedent's wish. The Will also revokes all prior Wills, thus rendering Objectant's arguments surrounding the validity of the December 27, 2018 Will that he attaches to his moving papers moot, as it was properly revoked by the decedent during her lifetime.

Pursuant to the doctrine of res judicata, a valid final judgment bars future actions between the same parties on the same cause of action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347, 712 NE2d 647, 690 NYS2d 478 [1999]). As a general rule, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357, 429 NE2d 1158, 445 NYS2d 687 [1981]).

Judge Kupferman was in the unique situation where the testimony elicited not only directly reflected on the sufficiency of the execution of the Will and associated estate planning papers, but he was able to observe and pass judgment on the demeanor and capacity of the decedent, finding her to be competent in all respects. It is not often that a judicial inquiry and determination as to a decedent's capacity to execute a Will is undertaken during the decedent's lifetime, but where it is, the doctrine of res judicata must apply.

When these principles are applied to the present motion which seeks to set aside the Will, there is only one conclusion to reach. This motion comes four (4) years following the Article 81 decision where decedent was determined to have capacity and that she validly executed her Will and related documents. The Objections submitted with and contained within the motion must be viewed as an impermissible "bite at the same apple" after the death of the decedent. The Objections consider the same issues, the same arguments and involve the same parties. As such it is barred by the doctrine of res judicata.

Critically, in addition to the fact that this matter has already been adjudicated during the decedent's life, given the facts before the Court, there is no difference in how the decedent's property would be distributed under the Will, the Trust, or at intestacy pursuant to EPTL §4-1.1. Each child would take an equal share under all three scenarios. Ordinarily, a distributee that is disinherited in a Will would likely have standing to object under SCPA §1410; however, under the facts of this case, Objectant was not disinherited and all children of the decedent will take an equal share under any of three possible scenarios.

Thus, in addition to the bar of res judicata, the Objectant ultimately has no standing under SCPA Article 14 to object to the Will or the Trust as his pecuniary interests are not and cannot be adversely affected. (In re Estate of Hall, 12 AD3d 511, 784 N.Y.S.2d 605 [App. Div. 2nd Dept. 2004]) [Court found no standing where Objectant's pecuniary interests were not adversely affected by the Will]).

This is important given the Objectant's issue with the execution, delivery and recording of the deeds to the decedent's real property. Three (3) deeds were executed by decedent on [*9]November 5, 2019 transferring three of her parcels of real property into the Trust. Such deeds were not recorded in the Saratoga County Clerk's Office until November 30, 2022 at 3:42 PM, and 3:46 PM and in the Washington County Clerk's Office on November 30, 2022 at 2:16 PM. The decedent passed November 30, 2022 at 4:20 AM (per the death certificate), prior to the recordation of the deeds.

Decedent's real property is disposed of in Article Fourth of her Will. Any such real property is devised to the Trustee of the Trust to be disposed of under the terms of the Trust (equally to all children of decedent). Likewise, real property deeded to and owned by the Trust is disposed of under the terms of the Trust (equally to all children). Given that the same result occurs under either scenario, it is not necessary for the Court to undertake an analysis of the objection surrounding the recordation of the deeds after the decedent's passing. Under either scenario (if the deeds were timely recorded or not) title to the property is ultimately vested in the Trust, either by operation of the Will or by validity of the recorded deeds which were executed on November 5, 2022 and recorded a few hours after decedent's death. This objection does not relate to the instant petition concerning admission of the Will to probate as any potential objection to the ultimate disposition of the real property by either the estate or the Trust to the beneficiaries is more properly brought in an accounting proceeding. This objection is therefore dismissed without prejudice.

Based on the foregoing, the Objectant's Objections to the Will based on claims of undue influence, fraud, its execution, and the testamentary capacity of the decedent are dismissed.

WHEREFORE, it satisfactorily appearing that all the persons required by law to be cited or who are interested in this proceeding have either appeared and filed Objections, failed to appear in response to a duly served citation, or by their waiver and consent in writing duly executed and filed, waived the issuance and service upon them of a citation in this proceeding, or have appeared and consented to the probate of the propounded instrument; and that notice of probate has been given to all persons entitled to such notice; and the Objections brought by the within motion having been considered, and proof having been elicited in the prior Article 81 proceeding from the attesting witnesses to the within testamentary instrument; and it appearing by such proofs and the Decision and Order of the Hon. Richard A. Kupferman, AJSC in Saratoga County Index No.: 2020-860 dated and Entered November 13, 2020, that the same were duly executed and are genuine and valid and that the decedent at the time of the executing same was in all respects competent to make a will and not under restraint; it is hereby

ORDERED AND DECREED, that the instrument offered for probate herein be, and the same hereby is admitted to probate as the Last Will and Testament of the above-named decedent, valid to pass real and personal property, that the Will and this Decree be recorded; and it is further

ORDERED and DECREED, that the Objectant's objection to the subject matter jurisdiction of this Court and this Court's issuance of preliminary letters to the Petitioner is denied, with prejudice for the reasons stated herein and such letters remain in effect; and it is further

ORDERED and DECREED, that the Objectant's objection to the venue of this proceeding is denied, with prejudice for the reasons stated herein; and it is further

ORDERED and DECREED, that the Clerk of the Supreme and County Court and the Saratoga County Clerk's Office unseal the Article 81 file of decedent under Index No.: 2020-860; and it is further

ORDERED and DECREED, that the Last Will and Testament of Mary E. Dudla, the decedent herein dated November 5, 2019 and filed with the Saratoga County Surrogate's Court on January 27, 2023 is hereby admitted to probate; and it is further

ORDERED, that a hearing pursuant to SCPA §707 on the objection enumerated at paragraph forty (40) of the Objections as to the suitability of the proposed fiduciary is hereby set for December 11, 2024 at 1:00pm in the Saratoga County Courthouse, Part 3, Ballston Spa, New York 12020. Counsel and parties are advised to be familiar with this Court's local rules for the submission of exhibits and conduct of hearings ^[FN9] ; and it is further

ORDERED and DECREED, that the Objectant's objection relating to the recordation of the three parcels of real property is dismissed without prejudice to be preserved for an accounting proceeding; and it is further

ORDERED and DECREED, that Objectant's remaining Objections raised and not otherwise specifically addressed by this Decision, Order and Decree are deemed dismissed as being without merit and with prejudice.