Opinion
November 6, 1961
Monaghan Mattingly for petitioners.
Nicholas A. Sordi for respondent.
This is a motion to reopen a probate proceeding by two sons of the decedent. Both sons have executed waivers of citation and a consent to the probate of the will.
Affidavits in opposition have been filed requesting a dismissal of the application, and the matter has been submitted for decision on the papers presented.
Both applicants admit that the prime motivating factor in their signing the waiver was their desire to "keep peace in the family", even though they allege that at the time they signed the instruments they were not aware of their significance.
A waiver duly acknowledged may only be set aside on a showing of fraud, misrepresentation, coercion or other ground tending to destroy the validity of the waiver ( Matter of Sturges, 24 Misc.2d 14).
There was no obligation on the part of the executrix or her attorney to advise the applicants of the nature or legal significance of the instruments executed by them. They are chargeable with knowledge of the contents and the legal effect of the waivers whereby they consented to the probate of the will ( Matter of Sturges, supra). The motion is denied, and the application to reopen the probate is dismissed.