The waiver and consent may be the most frequently used tool of trust and estate lawyers to obtain jurisdiction in a proceeding.[1]� By signing a waiver and consent, a party or an interested person: (1) waives the service of a citation (or summons for Supreme Court proceedings), appears in the proceeding (SCPA 401[4]); and (2) consents to the entry of a decree or judgment granting the relief that the petitioner seeks. In accounting proceedings, a waiver and consent typically is procured by counsel for the petitioner, generally the executor or trustee.
Acquiring jurisdiction by waiver and consent appears to us to have become a mechanical process for many estate lawyers. Waiver and consent forms are created and packaged with the appropriate petition and cover letter and stored on computer systems. Office procedures are implemented for mailing of the waiver and consent, cover letter and appropriate petition to the persons interested in any given proceeding. The complacency in such usage results in a lack of due consideration of its application in the underlying proceeding, or the fact that the interests of the fiduciary and beneficiary are not aligned. The consequence may well be the vacatur of a decree, the very opposite of what the petitioner and its attorney are seeking.
