                                                                     FILED BY CLERK
                             IN THE COURT OF APPEALS                      JUN 30 2005
                                 STATE OF ARIZONA                        COURT OF APPEALS
                                   DIVISION TWO                            DIVISION TWO


ANDREW MULLIN, a married man in               )
his separate capacity,                        )
                                              )         2 CA-CV 2003-0189
                        Plaintiff/Appellee,   )         DEPARTMENT B
                                              )
                   v.                         )         OPINION
                                              )
BRADFORD T. BROWN, ARTHUR A.                  )
CHAPA, RICHARD S. FIELDS, and                 )
EDWARD A. LINDEN,                             )
                                              )
                  Defendants/Appellants.      )
                                              )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. C-330235

                           Honorable Kenneth L. Fields, Judge

                                       AFFIRMED


Law Office of Ethan Steele, P.C.
 By Ethan Steele                                                                 Tucson
                                                         Attorney for Plaintiff/Appellee

Chandler & Udall, LLP
 By Edwin M. Gaines, Jr., and Kurt Kroese                                     Tucson
                                                   Attorneys for Defendants/Appellants


F L Ó R E Z, Presiding Judge.
¶1            This is a legal malpractice case. Defendants/appellants, Bradford Brown,

Arthur Chapa, Richard Fields, and Edward Linden, admitted they were negligent in having

failed to timely file a petition contesting the will and trust of Ralph Mullin, plaintiff Andrew

Mullin’s grandfather. The trial court denied appellants’ motions for directed verdict, made

at the close of Andrew’s case and at the close of evidence. The jury determined that Andrew

would have successfully contested the will and trust and awarded him $2,937,125 in

damages.1 Following the verdict, appellants moved alternatively for a judgment as a matter

of law, a new trial, or a remittitur. Those motions were denied as well, and this appeal

followed.

¶2            On appeal, appellants challenge the aforementioned rulings. We review the

denial of a motion for new trial and a motion for remittitur for an abuse of discretion.

Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d 449 (1998). We review de novo the

trial court’s denial of a motion for judgment as a matter of law, see Roberson v. Wal-Mart

Stores, Inc., 202 Ariz. 286, 44 P.3d 164 (App. 2002); however, we view all facts in the light

most favorable to Andrew. See Hutcherson. “[I]f any substantial evidence could lead


       1
              [A] plaintiff asserting legal malpractice must prove the existence
              of a duty, breach of duty, that the defendant’s negligence was
              the actual and proximate cause of injury and . . . damages. A
              necessary part of the . . . plaintiff’s burden of proof . . . is to
              establish that “but for the attorney’s negligence, he would have
              been successful in the prosecution . . . of the original suit.”

Glaze v. Larsen, 207 Ariz. 26, ¶ 12, 83 P.3d 26, 29 (2004), quoting Phillips v. Clancy, 152
Ariz. 415, 418, 733 P.2d 300, 303 (App. 1986).

                                               2
reasonable persons to find the ultimate facts sufficient to support the verdict, we will affirm

the judgment.” Gonzales v. City of Phoenix, 203 Ariz. 152, ¶ 2, 52 P.3d 184, 185 (2002).

                             Presumption of Undue Influence

¶3            Ralph Mullin died on August 3, 1995, leaving the bulk of his estate to

Andrew’s brother, Chris Jr., under the terms of a will and trust executed on June 10, 1995.

In previous wills, Ralph had provided equally for Andrew and Chris Jr. Andrew alleged that

the 1995 will and trust were the products of Chris Jr.’s undue influence on Ralph.

¶4            A presumption of undue influence arises when one occupies a confidential

relationship with the testator and is active in preparing or procuring the execution of a will

in which he or she is a principal beneficiary. See In re O’Connor’s Estate, 74 Ariz. 248,

246 P.2d 1063 (1952). Appellants concede that at the time Ralph executed the will and

trust in 1995, Chris Jr. stood in a confidential relationship with Ralph and that Chris Jr. was

the primary beneficiary of the will. But appellants argue that a presumption of undue

influence could not have arisen because there was insufficient evidence that Chris Jr. had

actively procured the 1995 will. We disagree.

¶5            Evidence was presented from which the jury could have determined that Chris

Jr. had instructed Ralph’s attorney to draft a new will and trust naming Chris Jr. as the

primary beneficiary and that he had communicated with the attorney during the drafting

process and suggested and/or dictated terms that were eventually included in the documents.

Although appellants presented evidence to the contrary, when viewed in the light most


                                              3
favorable to Andrew, the evidence as a whole and reasonable inferences therefrom support

a finding that Chris Jr. had actively procured the execution of the will. See In re Estate of

Harber, 102 Ariz. 285, 428 P.2d 662 (1967) (collecting cases in which active preparation

or procurement of will was found when beneficiary had submitted contents of will to

preparer or provided terms to attorney drafting will).

¶6            Appellants present a much closer question in their argument on the effect of

the presumption once it arises and whether the trial court correctly instructed the jury on the

burden of proving undue influence. They rely on a substantial line of Arizona Supreme

Court decisions that have described the presumption of undue influence as one that shifts

the burden of production of evidence but not the burden of persuasion. The reasoning is

best expressed in Seiler v. Whiting, 52 Ariz. 542, 84 P.2d 452 (1938), on which the cases

appellants cite relied, and in In re Westfall’s Estate, 74 Ariz. 181, 245 P.2d 951 (1952).

¶7            In Seiler, the court discussed presumptions in general, stating:

              There has been much erroneous thinking and more loose
              language in regard to presumptions. We read of presumptions of
              law and presumptions of fact, of conclusive presumptions and
              of disputable presumptions. In truth there is but one type of
              presumption in the strict legal meaning of the word, and that is
              merely a general rule of law that under some circumstances, in
              the absence of any evidence to the contrary, a jury is
              compelled to reach a certain conclusion of fact. . . .
              [W]henever evidence contradicting the presumption is offered
              the latter disappears entirely, and the triers of fact are bound to
              follow the usual rules of evidence in reaching their ultimate
              conclusion of fact. . . .



                                              4
                     “A presumption is not evidence of anything, and
                     only relates to a rule of law as to which party
                     shall first go forward and produce evidence
                     sustaining a matter in issue. . . . [A] presumption
                     should never be placed in the scale to be weighed
                     as evidence.”

52 Ariz. at 548-49, 84 P.2d at 454-55, quoting Peters v. Lohr, 124 N.W. 853, 855 (S.D.

1910). In Westfall’s Estate, the court applied this theory of presumptions to a will contest,

stating: “A presumption, in the strict legal meaning of the word, is a rule of law that in the

absence of any evidence to the contrary the trier of fact is compelled to reach.” 74 Ariz. at

186, 245 P.2d at 955.

¶8            The supreme court also applied this view of the presumption of undue

influence in subsequent cases. Estate of Harber (recognizing that presumption shifts only

burden of production and not burden of persuasion); In re Estate of Pitt, 88 Ariz. 312, 317,

356 P.2d 408, 411 (1960) (legal presumption of undue influence “‘dissolved’” on denial by

one presumed to have exerted undue influence “‘even if neither the judge nor the jury

believed the denial to be true’”), quoting O’Connor’s Estate, 74 Ariz. at 260, 246 P.2d at

1071. But see In re Estate of McCauley, 101 Ariz. 8, 11, 415 P.2d 431, 434 (1966)

(“[M]arital relationship existing between testatrix and proponent is not one of the

confidential relationships giving rise to the presumption of undue influence. Accordingly,

. . . the burden of proving undue influence remained with the contestants.”) (citations

omitted).



                                              5
¶9            If this authority were controlling, once appellants produced any evidence that

Chris Jr. had not exerted any undue influence, no matter how credible, the presumption

disappeared, and the jury should have been instructed that Andrew had the burden of

proving undue influence by clear and convincing evidence. The trial court instead relied on

the supreme court’s more recent decision in In re Estate of Shumway, 198 Ariz. 323, 9 P.3d

1062 (2000), and instructed the jury as follows:

                    If Chris Mullin Jr. and/or Dr. David Mullon had a
              confidential relationship with Ralph Mullin; was/were active in
              procuring the execution of the 1995 will; and was/were a
              principal beneficiary under its terms, then the 1995 will is
              presumptively invalid and the defendants must prove by clear
              and convincing evidence that Chris Mullin Jr. and/or Dr. David
              Mullon did not unduly influence Ralph Mullin.

¶10           “We review challenged jury instructions to determine whether the trial court

gave the jury ‘the proper rules of law to apply in arriving at its decision.’” Crackel v.

Allstate Ins. Co., 208 Ariz. 252, ¶ 68, 92 P.3d 882, 900 (App. 2004), quoting Durnin v.

Karber Air Conditioning Co., 161 Ariz. 416, 419, 778 P.2d 1312, 1315 (App. 1989). In

Estate of Shumway, the testator’s assistant, Rodriguez, prepared the will and received

twenty-five percent of the estate. The will included a penalty clause requiring beneficiaries

to forfeit their share of the estate if they challenged the will. Section 14-2517, A.R.S.,

invalidates a penalty clause when there is probable cause to challenge a will. Shumway’s

daughters challenged the will on the ground of undue influence. After a bench trial, the trial

court found the will valid and enforced the penalty clause. Division One of this court


                                              6
affirmed the judgment, concluding (1) that the trial court had not abused its discretion in

finding Rodriguez had met her burden of proving, by clear and convincing evidence, that she

had not exerted undue influence over Shumway, and (2) that the contestants had lacked

probable cause to challenge the will. In re Estate of Shumway, 197 Ariz. 57, 3 P.3d 977

(App. 1999), vacated in part, 198 Ariz. 323, 9 P.3d 1062 (2000).

¶11           The supreme court granted review on a single issue: whether the legal

presumption of undue influence, which had arisen because of Rodriguez’s confidential

relationship with the testator, her participation in creating the will, and her status as

beneficiary, was sufficient to establish probable cause to challenge the will. The court

concluded it was and based its conclusion, in part, on what it called Rodriguez’s burden of

proof. The court explained the effect of the presumption of undue influence, stating:

“‘[W]here a confidential relationship is shown the presumption of invalidity can be

overcome only by clear and convincing evidence that the transaction was fair and

voluntary.’” Id. ¶ 16 (alteration in Shumway), quoting Stewart v. Woodruff, 19 Ariz. App.

190, 194, 505 P.2d 1081, 1085 (1973). The court noted that “[t]his is a difficult standard

of proof . . . [t]hough Rodriguez met it to the trial judge’s satisfaction after presentation of

all evidence.” Id. The supreme court did not criticize the trial court’s conclusion that

“Rodriguez [had] proved by clear and convincing evidence that she had not exerted undue

influence” on Shumway, id. ¶ 3, and it did not vacate or disapprove the statement in

Division One’s decision that Rodriguez had met her “burden of showing by clear and


                                               7
convincing evidence that she did not unduly influence the decedent.” Shumway, 197 Ariz.

57, ¶ 22, 3 P.3d at 984.

¶12            Appellants argue the supreme court’s suggestion in Shumway that the

presumption of undue influence had shifted the burden of persuasion to the proponent of

the will is merely a product of loose language. They argue we should ignore the import of

the language as mere dictum because the only issue on review was the statutory question of

whether probable cause had existed to challenge the will pursuant to § 14-2517.

¶13            In contrast, Andrew contends Shumway signals a shift in the court’s

interpretation of the effect of the presumption from the minority rule in favor of the majority

rule—that this type of presumption affects the burden of proof and not just the burden of

production. See O’Connor’s Estate (recognizing Arizona does not follow majority rule that

effect of presumption of undue influence is to shift burden of persuasion to proponent of

will); Estate of Pitt (same); see also In re Last Will and Testament of Melson, 711 A.2d

783 (Del. 1998). He offers compelling policy reasons for shifting the burden of proof in

circumstances sufficient to raise the presumption, including access to evidence. He

acknowledges, however, that there are competing policy considerations and that the choice

between them is an issue more appropriately addressed by the supreme court or the

legislature.

¶14            Generally, when our supreme court substantially changes the law in a

particular area, it does so explicitly by acknowledging the change and thoroughly explaining


                                              8
its reasons therefor. See, e.g., Derendal v. Griffith, 209 Ariz. 416, ¶ 32, 104 P.3d 147, 155

(2005) (overruling Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966),

regarding “use of the ‘moral quality’ prong of [test] to determine whether one charged with

a misdemeanor criminal offense is entitled to trial by jury”); Ontiveros v. Borak, 136 Ariz.

500, 667 P.2d 200 (1983) (abolishing common law rule of nonliability for tavern owners

for accidents caused by intoxicated patrons); Reed v. Hinderland, 135 Ariz. 213, 219, 660

P.3d 464, 470 (1983) (holding that “the mere presence of the owner in an automobile driven

by another does not create any presumption of a master-servant relationship or joint

enterprise,” overruling Silva v. Traver, 63 Ariz. 364, 162 P.2d 615 (1945)). That the court

did not do so in Shumway, however, neither lessens the precedential authority of the case

nor permits this court to ignore it. See State v. Smyers, 207 Ariz. 314, n.4, 86 P.3d 370,

374 n.4 (2004) (“The courts of this state are bound by the decisions of [the Arizona

Supreme Court] and do not have the authority to modify or disregard th[at] court’s

rulings.”); In re Marriage of Thorlin, 155 Ariz. 357, 362, 746 P.2d 929, 934 (App. 1987)

(“This court may not disregard a clear holding of our supreme court on the purported ground

that the analysis supporting it is . . . incomplete.”); see also Doubek v. Greco, 7 Ariz. App.

102, 436 P.2d 494 (1968).

¶15           Furthermore, we do not consider the relevant language in Shumway to be mere

dictum. It is more than “a remark by the way.” Black’s Law Dictionary 454 (6th ed. 1990);

see also Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 81, 638 P.2d 1324, 1327


                                              9
(1981) (Dictum “is a court’s statement on a question not necessarily involved in the case.”).

Rather, that the proponent of the will had the burden of proof at trial was integral to the

court’s determination that probable cause to challenge the will existed. The court

concluded that the contestants could reasonably have believed they would prevail in a will

contest, at least in part because the proponent of the will would have had the difficult

burden of proving by clear and convincing evidence that she had not unduly influenced the

testator.

¶16           Moreover, the court weighed the presumption and the facts of the case in

determining whether probable cause had existed. Under the pre-Shumway cases cited above,

such weighing would have been inappropriate. See Seiler. Therefore, although the court

only addressed the effect of the presumption on determining the existence of probable cause,

a determination that is made in reference to a time before trial, and hence, before a burden

of production could have disappeared, the burden-of-proof-shifting nature of the

presumption was essential to the court’s reasoning in deciding the issue. That the court

could have arrived at the same conclusion by applying different reasoning does not make the

court’s statements about the reasoning it did apply to the very issue before it merely dictum.

¶17           We are not free to disregard the clear import of the supreme court’s language

in Shumway—that the presumption of undue influence, once it arises, shifts the burden of

persuasion to the proponent of a will. If the court did not mean for the language in

Shumway to apply to other will-contest cases such as this, or to implicitly overrule


                                             10
Westfall’s Estate and the other prior cases, see ¶¶ 7-8, supra, it obviously can clarify its

intent.2 But absent any indication that the pertinent language in Shumway was limited to

its facts or otherwise mere dictum, we conclude that the trial court did not err by instructing

the jury pursuant to the language in Shumway.

                                Sufficiency of the Evidence

¶18           Having found no error in the court’s instruction on the presumption and the

burden of proof, we also conclude that the evidence supports the jury’s verdict on the issue

of undue influence. The jury was instructed on the factors our supreme court has identified

as tending to establish undue influence. As the court has stated:

                      In determining whether a contestant has established that
              a will has been procured through undue influence, certain
              factors have been treated as significant indicia of the presence
              or absence of such influence. These factors include the
              following: Whether the alleged influencer has made fraudulent
              representations to the testat[or]; whether the execution of the
              will was the product of hasty action; whether the execution of
              the will was concealed from others; whether the person
              benefited by the will was active in securing its drafting and
              execution; whether the will as drawn was consistent or
              inconsistent with prior declarations and plannings of the
              testat[or]; whether the will was reasonable rather than
              unnatural in view of the testat[or’s] circumstances, attitudes and
              family; whether the testat[or] was a person susceptible to undue


       2
        We note that the court in Shumway cited Estate of Harber without expressing any
disapproval when it said the contestants’ attorney had advised them that “one who occupies
a confidential relationship to the decedent is active in procuring the execution of the will
and is one of the principal beneficiaries.” 198 Ariz. 323, ¶ 15, 9 P.3d at 1067. The court
did not, however, cite Estate of Harber or any of the other cases applying the reasoning in
Seiler when it described the effect of the presumption on the burden of proof.

                                              11
              influence; and whether the testat[or] and the beneficiary have
              been in a confidential relationship.

Estate of McCauley, 101 Ariz. at 10-11, 415 P.2d at 433-34. Appellants concede that Chris

Jr. was in a confidential relationship with Ralph and benefitted from the will. And as we

stated above, sufficient evidence was introduced from which the jury could have determined

that Chris Jr. had actively participated in the drafting of the will and trust by telling the

attorney the provisions to include. Sufficient evidence was also presented from which the

jury could have found all but one of the remaining factors.

¶19           Andrew testified that he had been close to his grandfather, and it was

uncontested that Ralph’s prior wills had provided equally for Andrew and Chris Jr. This

evidence supports an inference that the will and trust were inconsistent with Ralph’s prior

declarations and plans and that the will and trust were “unnatural” in view of Ralph’s

attitude about Andrew. See id. at 16, 415 P.2d at 439 (question whether will is “unnatural”

requires application of subjective test determining whether will is of type one would expect

from the particular testator).

¶20           Andrew also testified that he had not been told his grandfather had been ill

until the day Ralph died, just after Ralph had passed away, and that he had not known about

the execution of the will and trust. The jury could have determined from that testimony that

the execution of the will and trust had been concealed from Andrew, who was obviously an

interested party.



                                             12
¶21           Furthermore, the evidence showed Ralph’s attorney had drafted the new will

and trust as a “rush job” because Ralph was seriously ill and in the hospital. The attorney

drafted the documents substantially changing the distribution of Ralph’s estate the same day

he was asked to do so. Ralph executed the will the next day. The jury could have

determined from that uncontested evidence that the will and trust had been the products of

hasty action. Moreover, although Ralph’s attorney testified that he had discussed creating

a trust and pour-over will with Ralph for several months, he admitted that Ralph had not

discussed changing his beneficiaries.

¶22           Andrew’s medical expert, Dr. Hochman, testified that Ralph had been in a

physically and mentally compromised state during his hospital stay just before and after he

had executed the will and trust. He testified that persons in the medical condition Ralph had

been in at the time the will and trust were drafted and executed “certainly . . . can be led or

misled to do all sorts of things or take all kinds of positions that they don’t understand.”

Thus, Andrew presented sufficient evidence from which the jury could have found that

Ralph had been susceptible to undue influence at the time the will and trust were drafted

and executed.

¶23           Because there is support in the record for seven of the eight indicia of undue

influence, we conclude that sufficient evidence supports the verdict on that theory of

liability. We reject appellants’ argument that the jury was required to find all eight indicia

of undue influence before it could find that Chris Jr. had unduly influenced Ralph. That


                                              13
argument is based on a misreading of McCauley. The court did not require that all eight

indicia be found to support a finding of undue influence. Rather, the court simply stated

that no one indicium is necessarily dispositive and that it is appropriate to consider the

combined force of separate indicia in determining whether undue influence existed.

¶24            Appellants also argue that Andrew presented insufficient evidence on the

theories of mistake and lack of testamentary capacity. We do not reach these issues because

the jury returned a general verdict. We will “uphold a general verdict if evidence on any one

count, issue or theory sustains the verdict.” Murcott v. Best Western Int’l, Inc., 198 Ariz.

349, ¶ 64, 9 P.3d 1088, 1100 (App. 2000); see also Reese v. Cradit, 12 Ariz. App. 233,

469 P.2d 467 (1970).

¶25            In their reply brief, appellants contend they are entitled to a new trial if “any

one of the[] theories advanced by Andrew fails as a matter of law.” They argue that they had

submitted a proposed form of verdict to the trial court that included interrogatories on two

of Andrew’s theories of liability. Appellants rely on Dunlap v. Jimmy GMC of Tucson,

Inc., 136 Ariz. 338, 666 P.2d 83 (App. 1983). There, we noted that the defendant “[n]ot

having asked for special verdicts . . . will not be heard to challenge the validity of the general

verdict, the jury having been presented with ample evidence to sustain the award of damages

on at least [one] count.” Id. at 341-42, 666 P.2d at 86-87. We note that, in Dunlap, we

placed on defense counsel “the burden of requesting special verdicts after a motion for a

directed verdict has been denied.” Id. at 341, 666 P.2d at 86.


                                               14
¶26           Appellants submitted their proposed verdict form before trial and did not re-

urge their request for special interrogatories in light of the court’s rulings on their motions

for directed verdicts. But, more importantly, appellants did not object to the verdict form

the court used. The parties submitted proposed forms of verdict with their proposed jury

instructions. The court and the parties settled instructions off the record, but gave the

parties the opportunity to make a record of their objections. Although appellants objected

to several of the court’s instructions, including the instruction on burden of proof, they did

not object to the court’s form of verdict, nor have they argued on appeal that the court erred

by refusing to submit to the jury special interrogatories on liability. Therefore, having found

that substantial evidence supports the jury’s finding of liability on the theory of undue

influence, we do not address other theories of liability.

                                          Damages

¶27           Appellants also challenge the jury’s damage award. They claim the amount

awarded was based, in part, on the value of assets that had been transferred outside Ralph’s

estate before his death, namely funds withdrawn from a bank account held jointly by Ralph

and Chris Jr., and certain property referred to as the “oil and gas interests,” that Ralph

deeded to Chris Jr. on July 11, 2003, about a month before Ralph’s death. Appellants argue

the trial court erred by allowing Andrew to seek damages for the value of this property

without expert testimony that appellants had had a duty to “marshal assets outside of the




                                              15
estate.” Appellants also contend that, even if expert testimony was unnecessary, there was

insufficient evidence for the jury to award Andrew damages for such assets.

¶28            The jury rendered a general verdict on damages as well. At oral argument in

this court, appellants’ counsel stated it would have been impossible for the jury to have

awarded the damages it did without including the value of these assets in its calculations.

But counsel did not explain that contention with any particularity, nor did appellants argue

this point in their briefs. See Ariz. R. Civ. App. P. 13(a)(6), 17B A.R.S. (appellant’s

argument “shall contain the contentions of the appellant with respect to the issues presented,

and the reasons therefor, with citations to the authorities, statutes and parts of the record

relied on”).

¶29            In relation to a different point, appellants cited a portion of Andrew’s closing

argument in which he estimated the total damages were $3.4 million. The jury awarded

Andrew $2, 937,125, approximately $462,000 less than Andrew’s estimate. According to

appellants, the amount Chris Jr. allegedly had withdrawn from the joint bank account was

$600,000. Because one-half of $600,000 is less than the difference between Andrew’s

requested damages and the amount actually awarded, we cannot assume the jury included

the value of the funds withdrawn from the joint bank account in their damage award. Thus,

we do not consider appellants’ argument as to that account.

¶30            Assuming arguendo that the jury’s verdict necessarily included some or all of

the value of the oil and gas property, one-half of which was apparently $730,000, we reject


                                              16
appellants’ arguments as to that property. Contrary to their contention, whether the value

of the property should have been included in the value of the estate was an issue of damages,

not liability; therefore, no expert testimony was necessary. See A.R.S. § 12-2601(1)(c)

(“Expert testimony is necessary to prove the licensed professional’s standard of care or

liability for the claim.”). Appellants do not contest that, under Ralph’s previous will,

Andrew would have been the estate’s personal representative and would have had the power

and duty to “marshal the assets” of the estate.            See A.R.S. §§ 14-3703-3711.            A

malpracticing attorney is liable for consequential as well as special damages. See generally

Dan B. Dobbs, Dobbs Law of Remedies, Vol. 2, § 6.11, at 247 (2d ed.1993) (“A second

layer of damages recovery includes consequential damages, those damages that result as a

consequence of the fact that the malpractice plaintiff did not get the professional service to

which he was entitled. In litigation malpractice, these are damages that could not have been

recovered in the earlier litigation but that are nevertheless a result of losing that litigation.”).

Andrew lost the ability to contest the transfer of these assets outside of the estate when

appellants failed to timely file what the jury determined would have been a successful

contest of Ralph’s will. Thus, the jury properly considered whether Andrew would have

successfully challenged the transfers, and Andrew had no burden of showing a duty on

appellants’ part to assist Andrew in doing so.

¶31            Moreover, one of Andrew’s theories for including the oil and gas property in

Ralph’s estate was that Ralph had deeded the property to Chris Jr. as a result of the latter’s


                                                17
undue influence on Ralph. There was sufficient evidence to support this theory. Chris Jr.

drafted the deed for the property, and he was in a confidential relationship with Ralph when

Ralph executed it. Therefore, sufficient evidence supports a presumption of undue

influence. See Stewart. The record does not support a conclusion that, as a matter of law,

appellants rebutted this presumption with clear and convincing evidence. See Shumway.

Moreover, the jury could have determined that much of the same evidence of undue

influence discussed above as to the will also applied to execution of the deeds. Therefore,

sufficient evidence existed for the jury to include this property in the value of the estate, if

in fact that is what it did.

¶32            Affirmed.




____________________________________
                                   M. JAN FLÓREZ, Presiding Judge

CONCURRING:



____________________________________
JOHN PELANDER, Chief Judge



____________________________________
PHILIP G. ESPINOSA, Judge




                                              18
