Opinion
June 30, 1997
Appeal from the Surrogate's Court, Nassau County (Radigan, S.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Contrary to the petitioner's contentions, the Surrogate's Court did not err in dismissing his petition seeking to vacate the decree which admitted the decedent's February 27, 1994 will to probate. "A decree will not be reopened or vacated and a long and expensive contest permitted on the mere assertion of a claim to an interest in the estate" ( Matter of Bray, 146 Misc. 415, 416). In order for the decree to be vacated, it must appear that there is a substantial basis for the contest and a reasonable probability of success on the part of the petitioner ( see, Matter of Elias, 222 App. Div. 728; Matter of Leslie, 175 App. Div. 108; Matter of Elson, 94 Misc.2d 983; Matter of Sandow, 25 Misc.2d 356, affd 13 A.D.2d 451).
Here, the petitioner failed to sustain his burden. The record shows that although the decedent was frail in health, she had an alert mind, and was, in fact, able to recognize one of the attesting witnesses whom she had only met once several years before. The record further shows that the several changes in the will were explained to the decedent and that she appropriately signified her agreement with the changes.
The Surrogate did not improvidently exercise his discretion in denying the respondents' application for attorney's fees.
Rosenblatt, J.P., Miller, O'Brien and Ritter, JJ., concur.