Matter of Frutiger

In Matter of Frutiger, 29 N.Y.2d 143, the Count likened the waiver and consent to a stipulation subject to vacator upon a showing of good cause such as fraud collusion mistake accident of some such similar ground. The Court distinguished applications made post-decree from those made pre-decree presumably because less prejudice attaches to a vacatur if the will has not yet been admitted to probate. The Frutiger opinion further rules that "where both parties can be restored to substantially then former position the court as a general rule exercises such power if it appears that this stipulation was entered into inadvisedly or that it would be inequitable to hold the parties to it." (Frutiger at p. 150). Courts following Frutiger have still required a showing of good cause to support the vacatur of a waiver and consent.