                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                         In the Matter of the Estate of:

                  CHAUNCEY LOUIS LARMER, Deceased.

                    GLORIA LARMER, Petitioner/Appellee

                                         v.

                   JAMES LARMER, Respondent/Appellant.

                              No. 1 CA-CV 15-0561
                                FILED 10-13-2016

            Appeal from the Superior Court in Yavapai County
                         No. V1300PB201480073
            The Honorable Joseph C. Butner, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Linda Wallace, PLLC, Sedona
By Linda Wallace
Counsel for Petitioner/Appellee

Gordon & Gordon, PLLC, Cottonwood
By Michael J. Gordon
Counsel for Respondent/Appellant
                           LARMER v. LARMER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.


N O R R I S, Judge:

¶1           This appeal arises out of a dispute between
Respondent/Appellant James Larmer (“James”) and Petitioner/Appellee
Gloria Larmer (“Gloria”), over the validity of the will of Gloria’s late
husband, and James’s father, Chauncey Larmer (“Chauncey”). On appeal,
James argues the superior court, first, misapplied the law in finding the will
invalid because James had exercised undue influence over Chauncey and,
second, improperly removed him as personal representative of Chauncey’s
estate. We disagree with both arguments, and affirm the superior court’s
judgment in favor of Gloria.

             FACTS AND PROCEDURAL BACKGROUND1

¶2            Chauncey died on April 10, 2014, at the age of 88. In a will he
signed on November 6, 2013, Chauncey left his estate to James. Chauncey
also nominated James to be the personal representative of his estate.
Although Chauncey and Gloria had been together since 1989 and married
in 2006, Chauncey left nothing to Gloria. Chauncey also left nothing to his
other son, John.

¶3            Several months after Chauncey’s death, James petitioned to
informally probate Chauncey’s will and to be appointed as the estate’s
personal representative. In the petition, James identified himself, John, and
Gloria as individuals entitled to take property under Arizona law.

¶4            Gloria objected to the petition and alleged James had
exercised undue influence over Chauncey. Accordingly, Gloria asked the
court to invalidate the will and find that Chauncey had died intestate. She
also asked the court to remove James as personal representative.




              1We view the facts in the light most favorable to sustaining
the judgment. In re Estate of Newman, 219 Ariz. 260, 263, ¶ 3, 196 P.3d 863,
866 (App. 2008).


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                          Decision of the Court
¶5            The court held an evidentiary hearing to resolve the disputed
issues. At the hearing, Deanna S. testified she went to Chauncey’s home to
serve as a witness to Chauncey’s execution of the will. Deanna testified,
without objection, that on the first visit she believed Chauncey was
concerned about his wife and therefore did not sign the will at that time.
She further testified without objection that Chauncey “didn’t want to leave
her hanging out in the wind . . . . He was being a good husband and wanted
to make sure that she was going to be taken care of.” Deanna concluded, “I
just saw a man at the end of his life worried about his wife. That’s it.”
Approximately two months later, Deanna returned to Chauncey’s home,
and at that time she witnessed Chauncey’s execution of the November 6,
2013 will.

¶6            James testified he hired a paralegal to help draft the will.
According to James, he told the paralegal what Chauncey’s wishes were.
He explained Chauncey had not provided for Gloria in the will because he
intended to provide for her through a trust he had previously established
for her and from a life estate Chauncey had given her in their home. James
added that Chauncey did not include John in the will because Chauncey
meant to disinherit him.

¶7            James’s wife, Yvonne, testified Chauncey appeared of sound
mind when he signed the will. The notary who notarized the will similarly
testified there was nothing suspect about the signing and Chauncey
willingly signed the will.

¶8             After the evidentiary hearing, the superior court granted
Gloria’s petition and invalidated the will. In its minute entry, the superior
court stated that “although it was innocent, there was undue influence.”
The superior court also removed James as personal representative and
appointed a successor personal representative.

                              DISCUSSION

   I.     Undue Influence

¶9             James argues the superior court misapplied the law because
it failed to appreciate that the presumption of undue influence set out in
Arizona Revised Statutes (“A.R.S.”) section 14-2712(E)(1) (2012) is
rebuttable. We disagree with this argument.

¶10           Under A.R.S. § 14-2712(E)(1), “[a] governing instrument is
presumed to be the product of undue influence if . . . [a] person who had a
confidential relationship to the creator of the governing instrument was



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                           Decision of the Court
active in procuring its creation and execution and is a principal beneficiary
of the governing instrument.” This presumption of undue influence can be
overcome by a preponderance of the evidence, A.R.S. § 14-2712(F), with the
proponent having the burden of proof, see Mullin v. Brown, 210 Ariz. 545,
550, ¶ 17, 115 P.3d 139, 144 (App. 2005). By ruling that James exercised
undue influence over Chauncey, the superior court necessarily found James
had failed to rebut the presumption. Although the ruling does not explicitly
state James failed to overcome the presumption, the superior court’s ruling
shows an implicit understanding that the presumption is rebuttable.
Further, a trial judge is not required to expressly state the burden of proof
he or she applied, as the appellate court presumes the judge applied the
proper burden of proof. In re William L., 211 Ariz. 236, 238, ¶ 7, 119 P.3d
1039, 1041 (App. 2005) (citations omitted).

¶11            James also argues the superior court misapplied the law
because undue influence cannot be “innocent.” To the extent that the
superior court described James’s actions as “innocent,” whether the alleged
influencer has made fraudulent representations to the testator is only one
of several relevant factors in determining whether there has been undue
influence. In addition to this factor, other factors include whether: (1) the
execution of the will was the product of hasty action; (2) the execution of
the will was concealed from others; (3) the person benefited by the will was
active in securing its drafting and execution; (4) the will as drawn was
consistent or inconsistent with prior declarations and plannings of the
testator; (5) the will was reasonable rather than unnatural in view of the
testator’s circumstances, attitudes, and family; (6) the testator was a person
susceptible to undue influence; and (7) the testator and the beneficiary have
been in a confidential relationship. In re McCauley’s Estate, 101 Ariz. 8, 10-
11, 415 P.2d 431, 433-34 (1966) (citation omitted). By describing James’s
involvement in the preparation of the will as “innocent,” the court simply
found that James had not made any fraudulent representations to
Chauncey—a finding supported by the evidence.

¶12            James next argues the superior court’s finding that he
exercised undue influence over Chauncey was not supported by substantial
evidence. Reviewing the superior court’s findings for an abuse of
discretion, In re Marriage of Gibbs, 227 Ariz. 403, 406, ¶ 6, 258 P.3d 221, 224
(App. 2011) (appellate court reviews findings of fact for an abuse of
discretion) (citation omitted), we disagree.

¶13           The record supports the superior court’s findings that James
had a confidential relationship with Chauncey, James was the principal
beneficiary of the will, and James was active in the preparation of the will.
At the evidentiary hearing and in briefing to the superior court, James’s


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                            Decision of the Court
counsel conceded James was in a confidential relationship with Chauncey.
Indeed, the post-trial filing could not have been clearer: “Mr. Larmer
[James] admits that he had a confidential relationship with his father
[Chauncey].” Further, James retained the paralegal who prepared
Chauncey’s will and instructed the paralegal on what James characterized
as Chauncey’s wishes. Finally, James was the only person benefited by the
will. This evidence supports the superior court’s finding of undue
influence. See Davis v. Zlatos, 211 Ariz. 519, 524, ¶ 18, 123 P.3d 1156, 1161
(App. 2005) (substantial evidence is evidence that allows a reasonable
person to reach the superior court’s results) (quotations and citations
omitted).

¶14           Despite the foregoing, James argues the superior court should
have found he had rebutted the presumption of undue influence—pointing
to testimony from his wife and the notary that there was nothing suspicious
about Chauncey’s execution of the will. In making this argument, James is,
at bottom, asking us to reassess the evidence and the credibility of the
witnesses. That is not our role. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 52,
¶ 11, 213 P.3d 197, 201 (App. 2009) (appellate court does not reweigh the
evidence or substitute its evaluation of the facts) (citation omitted).

   II.    Removal of Personal Representative

¶15        James also argues the superior court improperly removed
him as personal representative of Chauncey’s estate. We reject this
argument.

¶16            Under A.R.S. § 14-3611(B)(3) (2012), a superior court may
remove a personal representative if it finds the personal representative “has
disregarded an order of the court.” Here, although the superior court did
not explicitly explain why it removed James as personal representative, at
the evidentiary hearing it observed that James had failed to comply with a
court order—an observation supported by the record.

¶17           Specifically, the superior court ordered James to serve notice
of the action to “the heirs and devisees whose addresses are reasonably
available to you.” Although James identified Gloria and John (plus himself)
as possible heirs and devisees and also listed their addresses in his petition
to informally probate the will, he did not serve notice of the action on Gloria
or John. Therefore, James disregarded an order of the court under A.R.S. §
14-3611(B)(3), and the superior court was authorized to remove him as the
estate’s personal representative.




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   III.   Attorneys’ Fees and Costs on Appeal

¶18          As the successful party on appeal, we award Gloria costs
pursuant to A.R.S. § 12-341 (2016) contingent upon her compliance with
Arizona Rule of Civil Appellate Procedure 21. Gloria has also requested an
award of attorneys’ fees on appeal but has not cited any authority for such
an award. Accordingly, we deny Gloria’s request for attorneys’ fees on
appeal.

                              CONCLUSION

¶19          For the foregoing reasons, we affirm the judgment of the
superior court.




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




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