MATTER OF BOBST
234 A.D.2d 7 (1996)
651 N.Y.S.2d 26
In the Matter of The Estate of Elmer H. Bobst, Deceased. Mamdouha S. Bobst et al., Appellants; Anne B. Highley, Respondent. In the Matter of The Estate of Elmer H. Bobst, Deceased. Anne B. Highley, Appellants; Mamdouha S. Bobst et al., Respondents
Appellate Division of the Supreme Court of the State of New York, First Department.
December 3, 1996
Concur — Rosenberger, J. P., Wallach, Tom and Andrias, JJ.
Denial of vacatur without a hearing was appropriate, despite the apparent conflict in the medical expert opinion. The determination of whether the granddaughter had been capable of protecting her legal rights at the time of the 1979 settlement turns not on any technical diagnosis or psychological classification, but on a pragmatic assessment of her daily living skills and all of the facts and circumstances relevant to her ability to safeguard her legal rights (see, Matter of Cerami v City of Rochester School Dist.,
While the merit of the challenge to the will need not have been shown since the ground for vacatur was jurisdictional, the Surrogate correctly observed that the asserted grounds for upsetting the will, lack of testamentary capacity and undue influence, were set forth in conclusory fashion without any allegations of fact. Moreover, moral deficiencies do not negate testamentary capacity (see, Matter of Anna, 248 N.Y. 421, 426), and the opportunity for undue influence does not mean that it was exercised.
We note, however, that laches would not have barred vacatur, since the claim was that the decree was made without jurisdiction (see, Matter of Roberts,
The claims for breach of the settlement agreement's confidentiality provision were not viable since the granddaughter sought to vitiate on jurisdictional grounds the very agreement for which breach was claimed. The granddaughter's assertion of fraud and breach of fiduciary obligation as grounds for vacatur was part and parcel of the jurisdictional argument, as previously noted, and not separate grounds for vacatur.
We have considered appellants' other contentions and find them to be without merit.
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