Opinion
July 12, 1976
Appeal from the Niagara County Surrogate.
Present — Marsh, P.J., Moule, Simons, Goldman and Witmer, JJ.
Order unanimously reversed, without costs, and petition dismissed. Memorandum: William Leeper died on March 2, 1975 leaving a will in which he bequeathed his entire estate to two friends in equal shares. On March 4, 1975, the day of his funeral, his 79-year-old sister and a niece executed waivers of citation and consents to probate. The will was admitted to probate on May 9, 1975. On July 15, 1975 decedent's sister petitioned the court to vacate its May 9 decree. In her petition she stated that the decedent's will was not properly executed and that when she signed the waiver of citation and consent she was upset because she had recently attended her brother's funeral. She further stated that she was told that if she did not sign the waiver and consent, a citation would be served upon her by the Ontario Provincial Police, and that she signed because she was fearful of having the police come to her home. On September 5, 1975 an order was entered vacating the May 9 decree. The court abused its discretion in reopening this probate proceeding. A party seeking to set aside a probate decree entered upon his consent must show that such consent was obtained by fraud or overreaching (Matter of Frutiger, 29 N.Y.2d 143), was the product of misrepresentation or misconduct (Matter of Westberg, 254 App. Div. 320), or that newly-discovered evidence, clerical error or other sufficient cause justifies the reopening of the decree (Matter of Hinderson, 4 Misc.2d 559, affd 2 A.D.2d 682; 1A Warren's Heaton, Surrogate Courts, § 121). Here there was no claim made which would satisfy any of these requirements. Recent bereavement or fear of being served with civil process is insufficient.