In re the Estate of Schuellain

269 A.D.2d 864, 703 N.Y.S.2d 795, 2000 N.Y. App. Div. LEXIS 1829

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2000
• Status: Published

Opinion

—Decree unanimously affirmed with costs. Memorandum: Petitioner and Ruth Schuellain (decedent) married in 1957. On December 19, 1985, petitioner executed a waiver of his right of election against decedent’s last will (see, EPTL 5-1.1-A). Following decedent’s death in June 1997, petitioner filed a notice that he was exercising his right of election, and he commenced the instant proceeding pursuant to SCPA 1421 seeking a determination that he is entitled to take his elective share of decedent’s estate.

Surrogate’s Court properly denied the petition and determined that the waiver of petitioner’s right of election is valid. Petitioner failed to present proof supporting his allegation that he was fraudulently induced to execute the waiver (see, Matter of Sunshine, 51 AD2d 326, 327-328, affd 40 NY2d 875). Indeed, petitioner “established nothing more than [his] own dereliction in failing to acquaint [him] self with the provisions of the [waiver] and to obtain the benefit of independent legal counsel. Although this dereliction may have caused [him] to be ignorant of the precise terms of the [waiver], the fact remains that, absent fraud or other misconduct, parties are bound by their signatures” (Matter of Garbade, 221 AD2d 844, 846, lv denied 88 NY2d 803). Further, petitioner’s challenge to the validity of the waiver, which accrued upon the execution of the waiver, is time-barred (see, Pommer v Trustco Bank, 183 AD2d 976, 977, lv dismissed in part and denied in part 81 NY2d 758). (Appeal from Decree of Onondaga County Surrogate’s Court, Wells, S. — SCPA.) Present — Green, A. P. J., Wisner, Pigott, Jr., Hurl-butt and Scudder, JJ.