This matter comes on by petitioner Marci Peckerman's Verified petition To Set Aside Probate decree. Petitioner is the daughter of decedent Leonard Pashkow.

Both the Estate of Leonard Pashkow and Hospice of Orange & Sullivan Counties, Inc. submit response and objections to the petition.

Petitioner submits reply memorandum of law.

Decedent passed away on January 30, 2009 at age seventy nine (79) in the state of Florida. Decedent died testate.

On November 19, 2009 petitioner filed a waiver and consent to admit the Will into probate which was notarized on October 21, 2009.

Petitioner seeks to set aside her waiver and consent to probate upon the grounds that she does not remember filing the waiver and consent to probate and she must file objections to probate based upon Co-Executor Barbara Steinberg's extreme undue [*2]influence.

Petitioner argues that she suffers from a variety of medical problems which requires the ingestion of no less that seventeen different prescription drugs which results in an ability not to think clearly and memory lapses.

Petitioner argues that Co-executor Barbara Steinberg lived with her father for many years, influenced her father into decreasing her share of his Estate while increasing Barbara Steinberg and adding relatives of hers as distributees and that her father was afraid of Barbara Steinberg.

A petitioner who seeks to vacate a probate decree on the grounds of undue influence must establish the probability that her claim is well founded and will be able to substantiate it if afforded an opportunity. Matter of Musso, 227 AD2d 404 (2nd dept., 1996).

A petition to set aside a waiver and consent to probate

and to vacate a probate decree is within the discretion of the court. Matter of Loverme, 27 AD3d 747 (2nd Dept., 2006).

This Court finds that the petitioner has raised sufficient grounds that she should be afforded and opportunity to substantiate her claims. See, Matter of Musso, supra.

Based upon the above, it is

ORDERED, that this Court shall conduct a fact finding hearing and rule upon the petition thereafter, and it is further

ORDERED, that the Clerk of the Surrogate Court shall schedule said hearing the last court date in May, 2011 upon notice to all parties.

This shall constitute the Decision and Order of this Court.

DATED: April 8, 2011

Monticello, NY

__________________________________Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate