In re the Estate of Fuchs

27 Misc. 2d 352, 212 N.Y.S.2d 472, 1961 N.Y. Misc. LEXIS 3176

Opinion

John D. Bennett, S.

This is a proceeding to determine the validity of a right of election under section 18 of the Decedent Estate Law.

The petitioner admits that he executed a document waiving his right of election, but contends that the execution by the testatrix of subsequent codicils following the execution by him of the waiver, invalidates such waiver, citing Matter of Deffner (281 App. Div. 798, affd. 305 N. Y. 783). However, the waiver in the latter case specifically referred to one particular will of a specified date. Here the waiver is general and unlimited in nature and refers to no particular will (Matter of Pelts, 14 Misc 2d 18). The petitioner states, however, that he reserves the right to supply “ collateral facts surrounding the waiver.” If this is an assertion on his part of other invalidities in the waiver, such as fraud or overreaching, he will be granted an opportunity to develop these facts at a hearing for such purposes on April 5, 1961. In the event no hearing is desired, the petition will be dismissed. No order need be entered on this decision unless desired by counsel.