In 1958, a woman from Salamanca, New York died and left her surviving two sons and daughter, all of full age, and several grandchildren. A document purporting to be the last will and testament of the deceased, with a petition for validation was duly filed with the court. The will submitted for validation was drafted by an attorney of Salamanca, New York, a man with many years of experience as a practicing attorney and was witnessed by the attorney and a young woman employed by the drafter of the will. In the proceeding, the petitioner seeks permission of the court to withdraw his waiver of citation consenting to the validation of the will of the deceased.
The petition for probate of will was verified by one of the two sons of the deceased, and accompanying the petition was the waiver and consent of the son which consents that the paper writing bearing date 1955 purporting to be the last will and testament of the deceased to be admitted to validation.
A New York Probate Lawyer said the citation was duly issued, addressed to the surviving daughter of the deceased, and proof of due service upon the said daughter and proof of mailing notice of validation to the other heirs was filed. The petition was verified; the waiver of citation was signed and verified the same date which also is the date of death of the deceased. The citation was returnable before the court at the court room in the forenoon of that day, but at the request of the proponent, the matter was adjourned and re-adjourned from time to time until the subscribing witnesses were examined.
The Petitioner, who is a son of the deceased, appeared in person and was represented by counsel. The daughter and the youngest son also appeared in person and were represented by counsel, even though he had filed a waiver consenting to the validation of the will.
The subscribing witnesses to the will were sworn, testified and were cross-examined by the attorney representing each of them. The daughter, by her attorney requested an adjournment for the purpose of filing objections and the same adjournment granted to the youngest son upon the request of the attorney to give him an opportunity to make appropriate motion to vacate his waiver of citation and to file objections.
Long Island Probate Lawyers said that based on records, at the expiration of the ten day adjournment, no objections had been filed on behalf of the daughter, and the court having received a communication from the counsel on behalf of the youngest son, which informed the court that he did not intend to move to set aside the waiver of citation executed by him consenting to the validation of the will, and that he did not intend to file objections to the validation. Thereupon the will was duly admitted to validation and letters testamentary on that date granted to the eldest son, the executor named in the will.
A petition has now been presented to the court signed by the youngest son and filed with the court, wherein the petitioner prays that an order be granted, addressed to the executor, directing him to show cause why the petitioner should not be permitted to withdraw his waiver of citation and cancellation of evidentiary letters and for such other relief as to which the petitioner may be entitled. The petition verified by the youngest son is supported by an affidavit signed by the grandson of the deceased and the son of the petitioner. The petition alleges, among other things, that the letter referred to from the firm representing the youngest son, was unauthorized; that fraud and misrepresentation were exerted upon the Petitioner by the petitioner’s brother who is the executor named in the will, is alleged in the petition, substituted the will offered for validation in the place of one which had been exhibited to the petitioner by his brother dated January 26, 1956; and that the petitioner when he signed the waiver of citation in the office representing his brother, thought he was consenting to the validation of a will dated January 26, 1956, instead of the one presented for validation dated December 19, 1955, although the waiver of citation signed by the petitioner, plainly and clearly describes the document being offered for validation as having been dated December 19, 1955.
The supporting affidavit by the petitioner’s son states that the grandson visited his grandmother, the deceased, in August of 1956; that he took her to the office where he believed the attorney who drafted the will in 1955, prepared another will for the deceased and he did not see the document for he waited in his car until his grandmother left the attorney’s office; and that even though he was requested to be present when the alleged new will was that day signed, did not do so as it was, in his words was none of his business; and that he took her back to her then place of residence in Salamanca, New York.
The eldest son submitted his affidavit, in which he denies knowledge of any will other than the one admitted was dated December 19, 1955. New York City Probate Lawyers stated that that will was handed to him in an envelope on which was labeled and dated December 19, 1955 and his statement is corroborated by the affidavit of his wife submitted in support of his affidavit. He denies ever showing his brother any other will and that when he and his brother visited the office of an attorney on the day of the death of the deceased, that the only will he had ever seen or which had been in his possession and which he had exhibited to his brother was the one discussed by them with the attorney at his office; that the papers were prepared by the attorney’s secretary; that the petitioner read the waiver before he signed it; and that there was no act of fraud or misrepresentation of any kind committed by the assigned executor in the will.
The answering affidavit is supported by an employee at the office of the attorney who drafted the will, a girl of wide experience as a secretary whose affidavit sets forth the facts that she prepared the papers, the petition for the validation of will and the waiver and consent for the Petitioner, and that he read the consent and that he knew what he was signing; and that he acknowledged the execution of the document before her.
The attorneys representing the respective parties submitted the matter to the court on the papers filed in this proceeding and on all proceedings had to date and on all papers filed with the court, except that petitioner does not stipulate to be bound by the letter dated October 22, 1958, after presenting their oral arguments on their respective positions and a brief has been filed by petitioner in support of his position.
The question that must be considered is whether the petitioner has shown that fraud or misrepresentation was perpetrated by the executor, upon him, and if any undue advantage was taken of the petitioner to obtain his waiver of citation which consented to the validation of the will in question by such sufficient and convincing proof as to justify a decree to set the same aside.
No testimony was taken in this proceeding, but the act of the parties in submitting the matter to the court on the papers filed in this proceeding, and on all proceedings had to date in the estate of the deceased and all papers filed with the court therein has the same force, weight and effect as though proof had been taken.
The fraud, misrepresentation, coercion, or other ground tending to destroy the validity of a waiver must be shown and should be clear and convincing.
Here we have the sworn statement by the petitioner that he was shown a subsequent will of the deceased, by his brother, and that he was tricked into signing a waiver consenting to the validation of an earlier will. The respondent, executor, flatly denies this. The son of the petitioner makes oath as to a third, a still later will, the existence of which are both denied by the attorney who prepared the will which has been admitted to validation. There have been no facts presented by the petitioner to show that such subsequent wills ever existed except his bare statement that he saw one.
The petitioner has shown no facts which establish to any degree that he was tricked into signing the waiver of citation consenting to the validation of the will dated December 19, 1955. The terms and provisions thereof were discussed by him and his brother with the attorney at his office as set forth in the affidavit, verified February 4, 1959. He was shown a waiver of citation by the attorney’s secretary, and she says in her affidavit that the petitioner examined the waiver and appeared to be reading it and then signed it in her presence and that she took his acknowledgement. The waiver itself, on file with the papers, clearly shows the date of the will, validation of which he was consenting to, was December 19, 1955.
The petitioner is a man of mature years, well-educated and fully as well informed on matters of this kind as is his brother, the executor. The execution of the waiver of citation and the consent to validation of the December 19, 1955, will was his own voluntary act and he is bound with knowledge of the contents of the instrument and with its legal effect. The document is in no way ambiguous and there is no proof that there was any misleading representation made to him at the time he signed it.
No question has been raised as to the competency of the deceased at the time of the execution of the will of December 19, 1955; no question has been raised as to its due execution. The question as to the regularity of the validation is not before the court. The petitioner was present at the taking of proof on the validation, represented by an attorney who participated in the examination of the subscribing witnesses, and has had the advantage of every legal right to which a prospective contestant could have had. He was aware of all the facts set forth in his affidavit at the time of the validation proceeding and ample opportunity has been afforded to him to establish the basis of this proceeding.
The Court accordingly determines upon the merits that the petitioner has failed to establish a basis in fraud, misrepresentation, coercion, or on any other ground for setting aside the waiver of citation and consent to the validation of the will dated December 19, 1955, which waiver was duly executed by him. The application of the petitioner is accordingly denied and his petition dismissed.
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