concurring in part, dissenting in part.
¶ 38 I do not join the majority in its rush to address the issue whether Adelida Vega Rodriguez engaged in the unauthorized practice of law. First, as the majority recognizes, the issue was raised through an untimely and inappropriate motion to strike. Second, as the majority also acknowledges, the record on appeal is incomplete; the trial court made no findings of fact, and we have no record of the essential proceeding. While we necessarily assume that the trial court made the requisite factual findings in support of its ruling, an appellate court that admits that the record is incomplete on a given point should be hesitant to declare, as does the majority, that the trial evidence is sufficient to sustain the ruling. For example, on this incomplete record, the majority asserts that Ms. Vega Rodriguez could not have advised Ralph Shumway on the selection of the proper form because the computer program used by Ms. Vega Rodriguez did not allow options. However, we know nothing regarding the choice of the underlying program itself, nor do we know whether the selected program’s choice of questions and answers was so clear as to involve no discretion but, rather, only a ministerial execution on the part of Ms. Vega Rodriguez. Because it is incomplete, the record does not support the majority’s assertion that the trial court “implicitly found” that “all that Rodriguez did in this ease” was to assist a person who was “mentally competent yet legally blind.” This is pivotal in a case in which the personal representative is arguing the inherent conflict of the document preparer being a beneficiary, a conflict the majority concedes. See Ariz. R. Prof. Conduct 1.8(c) (prohibiting a lawyer from drafting a will in which a substantial gift is given the lawyer); In re Estate of Marks, 91 Wash. App. 325, 957 P.2d 235, 241 (1998); In re Guardianship of Chandos, 18 Ariz.App. 583, 586, 504 P.2d 524, 527 (1972). It certainly does not support a judicial declaration that a contrary holding would be “an unfortunate result.”
¶ 39 Additionally, I would hold that probable cause existed to contest the will. Just six days before Mr. Shumway’s death, in his hospital room, Ms. Vega Rodriguez prepared a will declaring that she would receive one-quarter of Mr. Shumway’s estate. While I recognize this court’s deference to the trial court’s factual evaluations, the ultimate determination is a legal one, and I do not doubt that, in the circumstances of this case, the personal representative reasonably believed that the will was invalid.
¶40 Further, the majority has made it virtually impossible for a challenger to show that probable cause existed to contest the validity of the will whenever, with the clarity of hindsight, the trial court finds by clear and convincing evidence that the decedent had not been unduly influenced. Probable cause to initiate litigation is a resolution that must be based upon facts known at the outset. The majority has erroneously focused on facts accepted by the trial court after a full development of the record and not upon whether a reasonable person in the challenger’s position at the time the lawsuit was instituted would have had probable cause for concluding as she did. It thus has set up an infeasible standard, and, in so doing, has denied a meaningful review to the personal *68representative. By changing the operation of Arizona Revised Statutes Annotated section 14-2517, the majority has placed an insurmountable hurdle in the path of future wronged beneficiaries.