the Matter of Estate of Adrienne Bono, Deceased.
2009-1709
SURROGATE'S COURT OF NEW YORK, BRONX COUNTY
29 Misc. 3d 1211A; 2010 N.Y. Misc. LEXIS 5024; 2010 NY Slip Op 51792U
October 18, 2010, Decided
[*1211A] Wills--Probate--Consent to Probate.
OPINION BY: Lee L. Holzman 
Lee L. Holzman , J.
In this probate proceeding, the fiduciary of the estate of the decedent's paternal first cousin and alleged sole distributee (the movant) moves to vacate the waiver and consent to probate that he executed. The motion is opposed by the preliminary executors and the four charities who are the beneficiaries under the propounded instrument dated October 9, [**2] 2001.
The decedent died on March 31, 2009 at the age of 102. The movant executed a waiver and consent to probate on August 14, 2009; however, an attorney appeared for the movant on September 23, 2009, the return date of the citation in this proceeding, and indicated that the movant wanted to withdraw his consent to probate. The estate consists of personal property valued at more than $ 5 million.
The propounded instrument was executed when the decedent was about 95 years old. The single page, two-sided instrument is a Blumberg form and does not appear to be attorney supervised. The reverse side of the form bears the decedent's shaky, weak signature, and the signatures of two witnesses. One of those witnesses now serves as a preliminary executrix and formerly served as one of the decedent's Mental Hygiene Law article 81 guardians. Apparently, the other witness was an aide at the facility where the decedent resided at the time she signed the instrument.
About seven years prior to the execution of the 2001 instrument, by order and judgment dated December 13, 1994, the Supreme Court, Bronx County (McGee, J.) appointed article 81 guardians of the person and property of the decedent who was [**3] already residing at the extended care facility. After the issuance of preliminary letters testamentary, the Public Administrator commenced a proceeding seeking, inter alia, to vacate the preliminary letters testamentary and the issuance of letters of temporary administration to herself. In that application, the Public Administrator expressed "grave concerns" about the validity of the propounded instrument because, inter alia, it appeared that the article 81 guardians failed to obtain a determination from the supreme court that the decedent had the capacity to execute the instrument and did not seek leave from that court before arranging for its execution. That proceeding was adjourned to the return date of the probate proceeding commenced by the preliminary executors.
The movant served objections to probate on all parties except the guardian ad litem on January 21, 2010, but the objections were not accepted for filing due to his waiver and consent to probate. Those proposed objections allege, inter alia, that the decedent lacked the capacity to make a will, the instrument was not freely and voluntarily executed by the decedent, the decedent's signature, the instrument and its publication [**4] were obtained by fraud and undue influence, and the requirements of Mental Hygiene Law article 81 were not complied with at the time of execution.
In his motion papers, the movant asserts that he is legally blind, possesses only an eighth grade education and is ignorant of the law. He urges that he never received the probate citation in the letter containing the waiver and consent to probate and affidavit of heirship that was mailed to him by counsel to the preliminary executors, and that attorney never advised him of various rights or the import of the waiver and consent. He contends that at the time he executed the waiver and consent to probate, he was unaware that his mother's estate was a distributee of the decedent's estate, he lacked any understanding of the procedure or consequences of probate, such as his right to object to the will and his right to counsel, and he did not understand that by executing the waiver and consent, he would forfeit the potential right of his mother's estate to share in the decedent's estate. Based on his conversations with counsel to the preliminary executors at the time he received the waiver and consent, he believed that he was signing that document [**5] in order to "expedite" the probate process.
The preliminary executors oppose the motion asserting that, upon his receipt of the waiver and consent, the movant called to discuss the family tree and the forms he received, and he never advised their attorney that he was blind or that anything was missing from the envelope mailed to him. They annex an August 10, 2009 cover letter to the movant which refers to enclosures consisting of the probate citation, the propounded instrument, the waiver and consent to probate form and an affidavit of heirship. The letter states that if the movant had no objection to probate, it would "expedite the probate process" if he duly executed and returned the waiver and consent form, and also asks him to execute and return the affidavit of heirship. The preliminary executors note that the movant executed both the waiver and consent and the affidavit of heirship as requested, they urge that the probate citation was also included as an enclosure, and note that the probate citation itself advised [***2] the movant of his right to appear through an attorney. Finally, they contend that the movant also received a copy of the propounded instrument and knew there were substantial [**6] legacies.
The charities also oppose the motion asserting that: (1) there is no clear and convincing evidence that the waiver and consent was the result of fraud, overreaching, misrepresentation or misconduct or that there is any other basis for revocation; (2) at the time that the movant executed the waiver and consent, he was acting as the fiduciary of his mother's estate and should have known that the document he executed would have a legal, binding effect; and, (3) counsel to the preliminary executors had no obligation to provide the movant with legal advice or explanations.
In reply, the movant annexes various documents relating to the article 81 proceeding and asserts that: (1) due to his blindness, he follows a strict procedure upon his receipt of documents, which is to scan them into his computer and use a closed circuit television to magnify their contents; and, (2) as his computer does not contain a scanned citation, he did not receive it, and he only learned of it when his subsequently retained attorney obtained a copy. The movant's attorney asserts that the waiver and consent was obtained through improper overreaching and misrepresentation and, in any event, it should be vacated [**7] for good cause in the interests of justice as there are meritorious objections to probate.
The test for determining whether to grant leave to withdraw a waiver and consent to probate differs, depending on whether or not a probate decree has issued (see Matter of Frutiger, 29 N.Y.2d 143, 149, 272 N.E.2d 543, 324 N.Y.S.2d 36 [1971]). Generally, where a probate decree issues on consent, the party seeking to vacate the decree must demonstrate good cause to set aside the waiver based upon a showing that such consent was obtained by fraud or overreaching, was the product of misrepresentation or misconduct, or that there is newly discovered evidence, clerical error or other sufficient cause to justify vacatur of the decree and the reopening of the probate proceeding (see Bryer v The Bank of New York, 72 AD3d 532, 901 N.Y.S.2d 160 [2010]; Matter of Coccia, 59 AD3d 716, 874 N.Y.S.2d 224 [2009]; Matter of Titus, 39 AD3d 1203, 834 N.Y.S.2d 412 [2007], lv denied 9 N.Y.3d 804, 872 N.E.2d 877, 840 N.Y.S.2d 764 [2007]; Matter of Gifford, 28 AD3d 953, 813 N.Y.S.2d 815 [2006], mot dismissed, lv denied 7 N.Y.3d 799, 854 N.E.2d 1269, 821 N.Y.S.2d 805 [2006]; see also CPLR 5015; Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82, 96, 883 N.E.2d 996, 854 N.Y.S.2d 89 [2008]; Matter of Tooker, 21 A.D.2d 928, 251 N.Y.S.2d 224 [1964], lv denied 15 N.Y.2d 482 [1964]).
In contrast, where the application for leave to withdraw [**8] a waiver and consent is made prior to the entry of a probate decree, the courts liken the waiver and consent to a stipulation, and treat the application accordingly (see Matter of Frutiger, 29 NY2d at 149-150). Specifically, in Frutiger the court stated that a waiver and consent could be withdrawn prior to the entry of a probate decree, even though the movant had "inadvertantly, unadvisably or improvidently" executed the waiver, provided that it "would be inequitable to hold" him to the waiver and "all parties can be restored substantially to their former position" (29 NY2d at 150). Nonetheless, although proof of "good cause" may be more relaxed in the pre-probate context, there must still be a demonstration of merit and a reasonable probability of success (see Matter of Frutiger, 29 NY2d at 150; Matter of Gunz, NYLJ, Jun. 5, 1992, at 29, col 2).
In a probate proceeding, the will may not be admitted to probate unless the court is satisfied that its execution was valid, even if no interested party files objections to its validity (see SCPA 1408; Matter of Halpern, 76 AD3d 429, 906 N.Y.S.2d 253 [2010]; Matter of Falk, 47 AD3d 21, 845 N.Y.S.2d 287 [2007], lv denied 10 N.Y.3d 702, 883 N.E.2d 1010, 854 N.Y.S.2d 103 [2008]). Thus, where a movant with reasonable [**9] expedition seeks to withdraw a waiver [***3] and consent to probate, the application may be granted where the movant demonstrates some merit to the objection to probate, a reasonable probability of success and the absence of prejudice to the other parties (see Matter of Orlowski, 281 AD2d 422, 721 N.Y.S.2d 263 [2001]; Matter of Gunz, NYLJ, Jun. 5, 1992, at 29, col 2; Matter of Carini, NYLJ, July 23, 1996 at 23, col 6). Furthermore, the courts are more liberal in granting these applications where other parties have already filed objections, or it is apparent that they tend to file objections, or where the application is made very soon after the execution of the waiver and consent (see Matter of Bissell, 58 Misc 2d 246, 294 N.Y.S.2d 719 [1968]; Matter of Gunz, NYLJ, Jun. 5, 1992, at 29, col 2).
The proof on the motion and court filings demonstrate, prima facie, that the probate citation was served by mail on the movant on August 10, 2009, and his waiver and consent was executed August 14, 2009, the same date that preliminary letters issued. Moreover, the court does not find any wrongdoing by the proponents' counsel in obtaining the waiver and consent. Nontheless, the letter sent to the movant by counsel for the preliminary executors [**10] indicates only that the probate process would be expedited as a result of his execution of the waiver and consent. In view of the movant's blindness and limited education, and the fact that he was not represented by counsel at the time he executed the waiver and consent, the court credits the movant's contention that he failed to fully understand the legal impact and ramifications of the waiver and consent. Thereafter, the movant expeditiously obtained an attorney and sought to withdraw his waiver and consent prior to the admission of the will to probate (see Matter of Orlowski, 281 AD2d at 422; Matter of Gunz, NYLJ, Jun. 5, 1992, at 29, col 5). Without in any way passing on the ultimate outcome of a will contest, the documents annexed by the movant and in court files demonstrate that, at this time, his proposed objections have merit and a reasonable probability of success. The movant's proposed objections are similar or identical to the issues raised by the Public Administrator in the proceeding seeking to vacate the preliminary letters testamentary, in which the preliminary executors and charities were joined as parties. As it appears that the Public Administrator will file objections [**11] in any event, this also militates in favor of granting the motion (see Matter of Bissell, 58 Misc 2d at 246), and allowing the interposition of the movant's objections creates no prejudice to the preliminary executors and the charities, who are in the same position they were in at the time the probate proceeding commenced. Moreover, the court's "paramount concern is to admit only valid wills to probate" (Matter of Orlowski, 281 AD2d at 422; see also SCPA 1408). Where, as here in a pre-probate context, one interested party as well as another non-interested party express genuine concern as to the validity of the propounded instrument and its execution, as demonstrated by the documents submitted, the withdrawal of a waiver and consent to allow the interposition of objections must be permitted.
Accordingly, the motion is granted. The movant shall serve and file his objections within 10 days after the entry of the order to be settled hereon. Said order shall also provide for a conference with the court on a date that is agreed to by all appearing parties. All parties are to either be present on that date or reachable by telephone.
Settle order.