                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                           EDWARD J. STEWART

                                 Deceased
                      ______________________________

                       In re: the Matter of the Estate of:

                            LYNDA F. STEWART

                                 Deceased
                     _______________________________

                MICHAEL E. STEWART, Plaintiff/Appellant,

                                        v.

                   DAVID STEWART, Defendant/Appellee.

                             No. 1 CA-CV 19-0172
                              FILED 1-14-2020


           Appeal from the Superior Court in Mohave County
                        No. S8015PB201800165
               The Honorable Lee Frank Jantzen, Judge

                                  AFFIRMED


                                   COUNSEL

Michael E. Stewart, Sewell, New Jersey
Plaintiff/Appellant
David Stewart, Huntington Beach, California
Defendant/Appellee



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Chief Judge Peter B. Swann joined.


C R U Z, Judge:

¶1            Michael E. Stewart (“Michael”)1 appeals from the superior
court’s decision denying his petition to probate the will of Lynda F. Stewart
(“Lynda”). For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Lynda and her husband, Edward J. Stewart (“Edward”),
executed a joint will in 1991. Lynda had three daughters by a prior
marriage; Edward had two sons by a prior marriage: Michael and David
Stewart (“David”). The joint will provided that if either spouse did not
survive the other by six months, the deceased’s estate would be distributed
among the five children in equal shares. The joint will named Michael as
the alternate personal representative in the event Edward predeceased
Lynda.

¶3           In 1994, Lynda and Edward executed a codicil that amended
provisions in the joint will by removing Michael’s name from the list of
devisees. The codicil also replaced Michael as personal representative,
naming David instead, if Edward predeceased Lynda.

¶4              Edward died in November 2015; Lynda died in February
2016. At an evidentiary hearing in the probate proceedings in Edward’s
estate (“E.J.S. Proceedings”), the superior court found the codicil was valid
and Michael had been removed as a beneficiary. Michael petitioned for
formal probate of Lynda’s estate in January 2018. There, the court declined
to open probate, noting the codicil was deemed valid in proceedings




1     Because this matter involves family members with the same
surname, for clarity, we refer to each of them by their first names.


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                           STEWART v. STEWART
                            Decision of the Court

regarding Edward’s estate and that, in any event, Michael had not provided
proof of publication pursuant to statutory requirements.

¶5             Michael then initiated this litigation, filing a second petition
for formal probate in Lynda’s estate in August 2018. The court denied the
petition because “the issues raised were litigated in both PB2018-00015 (In
the Matter of the Estate of Lynda F. Stewart – I) and in PB2016-00047 (In the
Matter of the Estate of Edward J. Stewart).” Michael appealed.

                                DISCUSSION

¶6            Michael argues that the superior court erred in ruling that any
findings in the E.J.S. Proceedings have a preclusive effect on his claims in
the instant litigation. More specifically, Michael argues that the E.J.S.
Proceedings litigated the validity of the codicil as to Edward’s estate only
and that the codicil must be validated as to Lynda’s estate separately. We
review the superior court’s factual findings for clear error and its legal
conclusions de novo. In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5 (App.
2000).

¶7             The validity of the codicil is distinct from the issue of whether
the codicil was properly notarized; such formalities are not determinative
of a will’s validity. See, e.g., Matter of Estate of Muder, 159 Ariz. 173, 175
(1988) (analyzing testamentary intent to determine whether will was valid);
Matter of Estate of Killen, 188 Ariz. 562, 565 (App. 1996) (addressing
testamentary capacity). Michael contests the codicil exclusively on the
notarization formality; he does not challenge the codicil’s validity on other
grounds. David argues the rule of issue preclusion prevents Michael from
relitigating the validity of the joint will’s codicil.

¶8              “A formal testacy proceeding is litigation to determine
whether a decedent left a valid will.” Arizona Revised Statutes (“A.R.S.”)
section 14-3401(A). Issue preclusion applies when (1) the issue to be
litigated was actually litigated in a prior suit, (2) resolution of the issue was
essential to that decision, (3) a final judgment was entered, and (4) the party
against whom issue preclusion is invoked had “a full and fair opportunity
and motive to litigate the issue” and in fact litigated it. See Campbell v. SZL
Props., Ltd., 204 Ariz. 221, 223, ¶ 9 (App. 2003).

¶9            Michael does not dispute that he litigated the issue of the
codicil’s validity in a prior suit. In fact, in an evidentiary hearing for
Michael’s first petition for formal probate of Lynda’s will, Michael claimed
that the codicil was “erroneous, the [notary’s] journal was erroneous.” He
cited a letter addressing the notary’s failure to follow procedure and a


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                          STEWART v. STEWART
                           Decision of the Court

document he alleged undermined the validity of Lynda’s identification on
which the notary relied. In that first petition, the court, relying on the
record in the E.J.S. Proceedings,2 determined that Michael was barred from
relitigating the notarization issue and thus dismissed his petition to probate
Lynda’s will:

       [A]ll of these arguments about [the codicil] wasn’t signed by
       an appropriate person or that the notary was improper or it
       was not properly notarized, Judge Lambert [in the E.J.S.
       Proceedings] ruled specifically on those issues and on
       whether it was properly notarized, whether it was properly
       signed, and he found that it was a valid codicil.

¶10            Then, in a hearing on Michael’s second petition for formal
probate of Lynda’s will (the instant action) Michael re-raised the issue of
the codicil’s notarization with a claim that he “had information . . . that did
discredit the codicil” that he was unable to present in the E.J.S. Proceedings
and that he wanted to open probate for Lynda’s estate because “it was the
only time I could address the issue or have anyone actually look at this
thing.” Despite telling the court that he was not contesting the validity of
the codicil, Michael said, “Now that I have the new evidence, I’d like the
codicil to be looked at and to be redone.”

¶11            The court provided Michael an opportunity to describe the
evidence he would present challenging the validity of the codicil; Michael
cited the same evidence he offered in the evidentiary hearing for his first
petition. The court found, as it did in dismissing Michael’s first petition for
formal probate of Lynda’s will, that “[t]he codicil issue is closed. It is
collateral estoppel when the previous judge in [the E.J.S. Proceedings] after
having an evidentiary hearing, after taking evidence, after considering your
motion for reconsideration ruled that the codicil was valid.” The issue of
the validity of the codicil was essential to the determination of Michael’s




2       The codicil at issue included a notary acknowledgment pursuant to
A.R.S. § 14-2504. In finding the codicil valid as to Edward’s estate in the
previous E.J.S. Proceedings, the court found the notary’s testimony
“compelling and credible.” The court also found Michael had not provided
evidence of “any fraud or any untoward acts or falsifications” to rebut the
presumption of “compliance with signature requirements for execution” in
a self-proved codicil pursuant to A.R.S. § 14-3406(B).



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                           STEWART v. STEWART
                            Decision of the Court

right to petition to probate Lynda’s will because, if found valid, the codicil
disinherited Michael.

¶12            Final judgments were entered after Michael contested the
validity of the codicil in the E.J.S. Proceedings and in Michael’s first petition
to probate Lynda’s will. In an unsupervised administration of an estate, an
order resolving a formal proceeding may be considered a final judgment,
even if there is no final decree. Cf. In re Estate of McGathy, 226 Ariz. 277, 280,
¶¶ 15-17 (2010) (permitting appeal of “the final disposition of each formal
proceeding instituted in an unsupervised administration”). The court in
the E.J.S. Proceedings found that the codicil disinheriting Michael was
valid. Michael had the right to appeal from that ruling, as it had the effect
of a final judgment. He did not do so.

¶13            Finally, a review of the record reveals that Michael had full
opportunity to litigate the validity of the notarization of the codicil in the
E.J.S. Proceedings and he did in fact litigate the issue. Michael appeared in
the E.J.S. Proceedings, cross-examined the notary, and presented evidence
to the court. Michael had an interest in the litigation involving
interpretation of the codicil, as the codicil purported to disinherit him and
remove him as appointed personal representative for Edward’s estate. It is
undisputed that Michael actually litigated the issue of the codicil’s
notarization in the E.J.S. Proceedings and in his first petition to probate
Lynda’s will.

                                CONCLUSION

¶14           Issue preclusion bars Michael’s efforts to further litigate the
validity of Lynda’s joint will. The notarization issue was litigated in the
E.J.S. Proceedings. The determination that Michael was disinherited by
both Edward and Lynda was essential to the resolution of those
proceedings, and Michael had a fair opportunity to litigate the notarization
issue and had motive to do so. Accordingly, the elements of issue
preclusion are met on the issue of the codicil’s validity, and the court
properly denied Michael’s petition.




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                      STEWART v. STEWART
                       Decision of the Court

¶15           We affirm the superior court’s order denying Michael’s
petition to probate Lynda’s will.




                      AMY M. WOOD • Clerk of the Court
                       FILED: AA




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