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In re the Estate of Hartl

27 A.D.2d 953 Court N.Y. App. Div. Decision date 1967-04-24 English

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p. 953
In the Matter of the Estate of Frank Hartl, Deceased. Frank Hartl, Sr., Appellant; Winston C. Becannon, as Executor of Frank Hartl, Deceased, Respondent.

Order of the Surrogate’s Court, Westchester County, dated September 21, 1966, affirmed, without costs. The proper practice for obtaining the relief desired herein is by petition to vacate the probate decree. In our opinion, it is unnecessary to show a reasonable probability of success in the will contest as a prerequisite to withdrawal of a waiver of citation and consent to probate on the ground that it was obtained by fraud or misrepresentation (Matter of Teller, 277 App. Div. 937 , amd. 277 App. Div. 1016 ). The contestant’s allegations are sufficient to entitle him to a hearing on the issue of the withdrawal of the waiver (Matter of Baldwin, 3 A D 2d 635 ; Matter of Teller, supra). Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ. concur.