Prior to the commencement of a probate proceeding or an administration proceeding, the attorney for the estate will normally send a waiver consenting to the admission of the will to probate or to the appointment of an administrator to all interested parties who are members of the closest class of kinship to the decedent or who are mentioned in a will. This is a legal document and, once signed, it is difficult if not impossible to retract.
Surrogate Diana Johnson of Kings County recently denied a motion seeking to retract a waiver in the Estate of Miles. The movant who had given the waiver was represented by counsel and had signed the waiver as a result of misconceptions she had about the meaning of the document. The court ruled that in the absence of some proof of fraud or deception, the waiver was binding and could not be retracted.
It cannot be emphasized enough that there is generally a finality about signing a waiver. Your lawblogger frankly does not understand how counsel may have failed to impart this importance to the person executing the waiver even though I must confess that I was not a fly on the wall and was not privy to their conversations on this matter. Suffice to say that if you have any doubts whatsoever about whether or not to sign a waiver, there is generally no harm to you in simply not signing. In such a case, you will eventually be served with a citation and will have the opportunity to appear in court and explain your concerns to the Surrogate and probably one of the court attorneys. If you realize that you will need legal representation, you will be given the opportunity to hire a lawyer to protect your interests.
As an additional afterthought, I would point out that there is no need to fear service of a citation. Like a summons, it is a jurisdictional device. It merely confers jurisdiction on the Surrogate to hear and determine the issues raised in the estate proceeding.