Chapman v. Varela

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-041

Filing Date: July 20, 2009

Docket No. 31,234

IN THE MATTER OF THE ESTATE OF
GREGORIA C DE BACA, Deceased,

EDWINA CHAPMAN and GILBERT C DE BACA,

Plaintiffs-Petitioners,

v.

VIOLA A. VARELA and VINCENT VARELA,

Defendants-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI
Carol J. Vigil and Daniel A. Sanchez, District Court Judges

Law Office of Ronald Boyd
J. Ronald Boyd
Santa Fe, NM

for Petitioners

Simons & Slattery, L.L.P.
Thomas A. Simons, IV
Faith Kalman Reyes
Santa Fe, NM

Canepa & Vidal, P.A.
Timothy J. Vidal
Santa Fe, NM

for Respondents

Keleher & McLeod, P.A.
Gregory W. MacKenzie
Albuquerque, NM

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Roepke Law Firm, L.L.C.
Karl H. Roepke
Albuquerque, NM

for Amicus Curiae
N.M. Trial Lawyers Association

OPINION

CHÁVEZ, Chief Justice.

{1} When Gregoria C de Baca died on May 11, 2004, she was survived by nine children:
Rosina Villa, Rudy C de Baca, Viola Varela, Simon C de Baca, Tom C de Baca, Daniel C
de Baca, Gilbert C de Baca, Edwina Chapman, and Donna C de Baca. Gregoria’s will, dated
August 28, 2002, left one dollar to each of her children except Viola, who the will appointed
as personal representative and to whom the will conveyed the remainder of Gregoria’s estate
via its residuary clause. Viola already had received much of Gregoria’s real property via
five inter vivos warranty deeds that had been signed and recorded about three years before
Gregoria’s death and about one year before the will was executed. Edwina and Gilbert,
subsequently joined by Rudy, Daniel, Rosina, and Donna, brought actions in district court
to set aside the will and deeds as the products of Viola’s undue influence. After a trial, the
district court voided the will and the deeds. The Court of Appeals concluded that there was
insufficient evidence to support the district court’s finding of undue influence regarding the
will, but did not reach the issue of the deeds. Chapman v. Varela (In re Estate of C de
Baca), 2008-NMCA-108, ¶¶ 11, 47, 144 N.M. 709, 191 P.3d 567.

{2} We reverse the Court of Appeals and hold that there was sufficient evidence to
support the district court’s findings of a confidential relationship between Gregoria and
Viola and suspicious circumstances surrounding the execution of her will. Accordingly,
under our rules governing civil presumptions, we hold that sufficient evidence existed for
the district court’s ultimate conclusion that the will was void as the product of Viola’s undue
influence. Finally, because the Court of Appeals did not decide the validity of the deeds, and
because this issue was not specifically briefed to the Supreme Court, we remand to the Court
of Appeals for its determination of this issue.

I. BACKGROUND

{3} Gregoria C de Baca died on May 11, 2004, at the age of 84. Edwina and Gilbert,
claiming that Gregoria died intestate, submitted an application in district court for informal
appointment as personal representatives. They were subsequently named personal
representatives of Gregoria’s estate. In a separate action that was later consolidated with the
probate proceedings in district court, Edwina and Gilbert claimed that five inter vivos
warranty deeds of Gregoria’s real property to Viola were procured by forgery,

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misrepresentation, or undue influence.1 Viola subsequently petitioned the district court to
admit Gregoria’s will into probate, and in accordance with the will, to remove Edwina and
Gilbert as personal representatives and appoint her in their place. The will provided one
dollar to each of Gregoria’s children except for Viola and purported to detail Gregoria’s
grievances with several of them. In contrast, the will praised Viola, noted that Gregoria’s
bank accounts and real property had already been conveyed to her, and devised the residue
of Gregoria’s estate to her. Viola was appointed personal representative and made various
counterclaims that are not relevant to this appeal. Edwina and Gilbert, joined by Rudy,
Daniel, Rosina, and Donna (collectively “Siblings”), petitioned the district court to set aside
the will as a product of Viola’s undue influence. After a bench trial, the district court
removed Viola as personal representative and set aside the deeds and the will, concluding
that “[b]y clear and convincing evidence, [the deeds] and [the will] are the result of undue
influence by Viola Varela.”

{4} Viola sought review in the Court of Appeals, which reversed the district court,
holding that there was insufficient evidence that the will was the product of undue influence.
Chapman, 2008-NMCA-108, ¶ 47. In reaching its conclusion, the Court of Appeals held
that “[t]he evidence regarding old age, unnatural disposition, domination, and secrecy did
not establish that Viola substituted her own intent for Gregoria’s.” Id. Given this shortfall
and the Court’s conclusion that Viola did not participate in procuring the will, but did
provide “consideration in the form of love, friendship, and help with daily living[,]” id., the
Court of Appeals concluded that the district court could not have found clear and convincing
evidence of undue influence. Id. The Court of Appeals averred that it did not need to reach
the question of whether the deeds were the product of undue influence, id. ¶ 11, presumably
because even if they were invalid, Gregoria’s real property would pass to Viola via the will’s
residuary clause. Siblings seek review on a number of issues that, taken together, amount
to a challenge of the Court of Appeals’ holding on the sufficiency of the evidence of undue
influence. The New Mexico Trial Lawyers Association joins them as Amicus Curiae in
criticizing the Court of Appeals’ opinion.

II. DISCUSSION

A. STANDARD OF REVIEW

{5} To find sufficient evidence to support the district court’s invalidation of Gregoria’s
will because of undue influence, we must be able to conclude that a reasonable fact finder
could have found clear and convincing evidence of undue influence. Gersbach v. Warren
(In re Estate of Gersbach), 1998-NMSC-013, ¶ 31, 125 N.M. 269, 960 P.2d 811. Clear and
convincing evidence is evidence that would “instantly tilt[] the scales in the affirmative when

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Siblings also sought to set aside a deed of real property from Gregoria to Viola’s
son, Vincent, but neither this claim nor Vincent’s various counterclaims are relevant to this
appeal.

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weighed against the evidence in opposition . . . .” In re Locatelli, 2007-NMSC-029, ¶ 7, 141
N.M. 755, 161 P.3d 252 (per curiam) (internal quotation marks and citation omitted). In
determining sufficiency, we keep in mind that “[t]he duty to weigh the credibility of
witnesses and to resolve conflicts in the evidence lies with the trial court, not the appellate
court. We consider the evidence in the light most favorable to the prevailing party and
disregard any inferences and evidence to the contrary.” Doughty v. Morris, 117 N.M. 284,
287, 871 P.2d 380, 383 (Ct. App. 1994) (citation omitted). However, we give no deference
to the district court’s conclusions of law. See Primetime Hospitality, Inc. v. City of
Albuquerque, 2009-NMSC-011, ¶ 10, 146 N.M. 1, 206 P.3d 112 (“We review these
questions of law de novo, without deference to the district court’s legal conclusions.”). We
are mindful of Viola’s complaint that the district court’s findings are “insufficient” and “are
conclusions listed [as] factual findings.” Although we disagree that the district court’s
findings are so insufficient that they necessitate a remand, we recognize that some of the
district court’s findings are conclusions of law, and we do not afford such conclusions any
deference in our review.

B. DEFINING UNDUE INFLUENCE

{6} The first dispute between the parties concerns exactly what it is that the district court
must have been able to find by clear and convincing evidence to set aside Gregoria’s will
because of undue influence. However, as a preliminary matter, the parties do not disagree
over the most general outlines of this doctrine. Undue influence “means influence,
improperly exerted, which acts to the injury of the person swayed by it or to the injury of
those persons whom [he or] she would have benefited.” Brown v. Cobb, 53 N.M. 169, 172,
204 P.2d 264, 266 (1949). We have hesitated to provide precise elements for undue
influence because “any attempt to define it may well suggest a clear path of evasion.” Id.
The contestant of a will (in this case, Siblings) bears the burden of persuading the finder of
fact that undue influence occurred. NMSA 1978, § 45-3-407 (1975).

{7} Many years ago, we observed that the fundamental problem of proving undue
influence was that:

In the nature of things it would be a rare case where the details of
conversation or conduct could be shown indicating undue persuasion and
influence. Such arts would be exercised only in the absence of witnesses, or,
at most, in the presence of those whose interest and inclination would impel
to their denial.

Cardenas v. Ortiz, 29 N.M. 633, 640, 226 P. 418, 421 (1924) (internal quotation marks and
citation omitted). For this reason, New Mexico law has traditionally allowed the contestant
of a will to meet certain procedural hurdles, detailed later in this opinion, by raising a
presumption of undue influence. Moreover, “because of the difficulty in obtaining direct
proof in cases where undue influence is alleged, proof sufficient to raise the presumption is
inferred from the circumstances.” Montoya v. Torres, 113 N.M. 105, 110, 823 P.2d 905, 910

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(1991). “The presumption arises if a confidential or fiduciary relation with a donor is shown
together with suspicious circumstances.” Id. Such circumstances include:

(1) old age and weakened physical or mental condition of testator; (2) lack
of consideration for the bequest; (3) unnatural or unjust disposition of the
property; (4) participation of beneficiary in procuring the gift; (5) domination
or control over the donor by a beneficiary; and (6) secrecy, concealment, or
failure to disclose the gift by a beneficiary.2

Id. “This is not an exhaustive list, nor is it a list of circumstances that are always suspicious.
Furthermore, the presence of any of these circumstances is not in itself dispositive.”
Gersbach, 1998-NMSC-013, ¶ 8.

{8} The parties disagree over the effect the presumption should have on our review for
substantial evidence. Viola urges us to accept the reasoning of the Court of Appeals. That
Court noted that “[i]n order to uphold the . . . judgment [of undue influence], we would need
to conclude that, viewing the evidence in the light most favorable to [the contestant], a
reasonable fact finder could find clear and convincing evidence that the testator made a gift
he would not have made absent improper influence.” Chapman, 2008-NMCA-108, ¶ 46
(modifications in original) (quoting Gersbach, 1998-NMSC-013, ¶ 31). From this premise,
the Court of Appeals reasoned that it must “consider the existence of suspicious
circumstances not as ends in themselves but as clues in discovering the testator’s intent.”
Id. ¶ 17 (emphasis added). Surveying the evidence in light of this standard, the Court noted
that “[a]lthough Siblings presented a great deal of evidence that appears to satisfy the
elements [sic] of undue influence, closer examination reveals that very little of the testimony
and evidence is relevant to the determination of Gregoria’s intent.” Id. ¶ 47. The Court of
Appeals explained that it took this approach out of concern that making proof of undue
influence too easy could undermine testamentary freedom. Id. ¶ 13.

{9} Siblings and Amicus, on the other hand, argue that by requiring proof going to the
ultimate issue of whether Gregoria’s intent was subverted through undue influence, the Court
of Appeals “would require contestants to prove facts that are often unknowable” and thereby
“denie[d] the contestants their well-established right to a presumption . . . .” Siblings and
Amicus claim that “New Mexico undue influence law puts upon the contestant only the
burden of showing a confidential relationship and circumstances which over the decades
have proven to be reliable indicia of an abuse of a confidential relationship.” We believe
that this position is essentially correct.

{10} To explain our conclusion, we must briefly expound on the effect of presumptions

2
In our analysis of these factors later in the opinion, we re-order the factors slightly
by placing lack of consideration last. We take this action because this factor is irrelevant to
the case at bar and because the Court of Appeals re-ordered the factors in the same way.

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in civil cases in New Mexico. Rule 11-301 NMRA provides that:

In all civil actions and proceedings not otherwise provided for by
statute or by these rules, a presumption imposes on the party against whom
it is directed the burden of going forward with evidence to rebut or meet the
presumption, but does not shift to such party the burden of proof in the sense
of the risk of nonpersuasion, which remains throughout the trial upon the
party on whom it was originally cast.

{11} Rule 11-301 operates in undue influence cases as follows. In a jury trial, once a
presumption of undue influence is raised, the contestant’s burden of going forward with the
evidence is satisfied and he or she is not susceptible to a motion for judgment as a matter of
law. Mortgage Inv. Co. v. Griego, 108 N.M. 240, 244, 771 P.2d 173, 177 (1989)
(“Presumptions governed by the [rule] operate to avoid a directed verdict . . . .”); Martinez
v. Cantu (In re Estate of Gonzales), 108 N.M. 583, 584, 775 P.2d 1300, 1301 (Ct. App.
1988) (“[A] party may rely on a presumption to establish his or her prima facie case.”). In
addition, once evidence sufficient to raise the presumption has been introduced, a “burden
of going forward with evidence to rebut or meet the presumption” is imposed upon the
proponent of the will. Rule 11-301. Our case law is not consistent regarding the effect of
failing to “rebut or meet” a presumption, but we need not resolve this issue as it is not before
us. Compare Griego, 108 N.M. at 243-44, 771 P.2d at 176-77 (“If the adverse party offers
no evidence contradicting the presumed fact, the trial court will instruct the jury that if it
finds the basic facts, it may presume the existence of the presumed fact.”), with Gonzales,
108 N.M. at 585, 775 P.2d at 1302 (“If the proponent does not meet this burden, the
contestant’s evidence might require a finding of undue influence.”). In a non-jury trial such
as this one, the impact of a presumption is slightly different. We have observed that due to
the use of involuntary dismissal rather than directed verdicts in bench trials, “as a practical
matter, presumptions in a civil nonjury trial under Rule 301 are little more than rhetorical
devices; one can argue them to a judge but they have no mandatory effect upon his
decision[,]” which is reached by weighing the evidence. Griego, 108 N.M. at 244, 771 P.2d
at 177 (emphasis removed) (citation omitted).

{12} More importantly for the purposes of our sufficiency of the evidence review on
appeal, under Rule 11-301 a presumption once raised in both jury and non-jury trials
continues to have evidentiary force, regardless of the contradictory evidence presented by
the party against whom it is employed. Thus, although the raising of the presumption does
not mandate any final result at trial, if the fact finder concludes that the party raising the
presumption has prevailed and we find sufficient evidence to support the raising of the
presumption, we will not set aside the fact finder’s conclusion on appeal. This is because
Rule 11-301 “eliminated the ‘bursting bubble’ theory of presumptions, and a presumption
now retains evidentiary effect throughout the trial, so as to permit the fact finder to draw an
inference of the presumed fact from proof of the basic or predicate fact.” Roberts Oil Co.
v. Transamerica Ins. Co., 113 N.M. 745, 756, 833 P.2d 222, 233 (1992). Under the defunct
bursting bubble theory, once a presumption was rebutted, the basic facts that raised it

6
remained, but they were given no special evidentiary value and might or might not be
enough to reach the fact finder. In contrast, without a bursting bubble theory, the
presumption always remains and the basic facts can justify a finding of the presumed fact,
even if, in the absence of the presumption, the basic facts might not justify such a finding.
See 2 Kenneth S. Broun, McCormick on Evidence § 344, at 508-10 (6th ed. 2006). In other
words, “the inference may continue to operate in an evidentiary sense even after introduction
of evidence tending to establish the contrary, and may sufficiently influence the trier of facts
to conclude that the presumed fact does exist.”3 State Farm Mut. Auto. Ins. Co. v. Duran,
93 N.M. 489, 492, 601 P.2d 722, 725 (Ct. App. 1979). The justification for this change was
that denying any evidentiary effect to a rebutted presumption gave presumptions “too slight
and evanescent an effect[,]” Trujillo v. Chavez, 93 N.M. 626, 629, 603 P.2d 736, 739 (Ct.
App. 1979) (internal quotation marks and citation omitted), and ignored the fact that many
presumptions are created for policy reasons that “may persist despite the existence of proof
rebutting the presumed fact.” 2 Broun, supra, § 344, at 509.

{13} It is precisely because of the evidentiary effects of presumptions that our law
employs them in undue influence cases, where, as we noted above, direct proof is
notoriously elusive. The mechanism of a presumption allows the will contestant to get the
issue of undue influence before the fact finder by offering only proof of a confidential
relationship and suspicious circumstances.

{14} Of course, even if a party successfully raises a presumption that could be used by the
fact finder to justify a finding of the ultimate fact of undue influence, the risk of
nonpersuasion never shifts from the party on whom it was originally placed: the will
contestant. Rule 11-301; § 45-3-407. The ultimate question before the trier of fact is
whether the will contestant has proven that “the testator made a gift he would not have made
absent improper influence.” Gersbach, 1998-NMSC-013, ¶ 31; see Barber v. Pound (In re
Estate of Strozzi), 120 N.M. 541, 542-43, 903 P.2d 852, 853-54 (Ct. App. 1995) (approving
a jury instruction requiring the jury to find either (1) that a confidential relationship existed
and that the will proponent “used that position to unfairly and improperly influence [the
decedent] to his injury, or to the injury of those persons he would have benefitted in the
absence of the influence[;]” or (2) that the will proponent “unfairly and improperly
influenced [the decedent] as to prevent him from exercising a free and understanding
judgment when he executed his will.”). However, the fact finder is permitted to draw its
conclusion based entirely on the basic facts and the presumption, if it so chooses. See
Strozzi, 120 N.M. at 544-45, 903 P.2d at 855-56 (also noting an instruction on the

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We note that the effect of presumptions in civil cases is thus markedly different than
in criminal cases, where a presumption can have no inherent evidentiary effect. See State
v. Trossman, 2009-NMSC-__, ¶ 18, __ N.M. __, __ P.3d __ (No. 31,010, June 22, 2009)
(noting that a presumption in a criminal case may not “undermine the factfinder’s
responsibility at trial, based on evidence adduced by the State, to find the ultimate facts
beyond a reasonable doubt” (internal quotation marks and citation omitted)).

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presumption, and noting that “[r]espondents do not contest that the verdict must be affirmed
if Petitioners established the existence of a confidential relationship and certain suspicious
circumstances.”). We note that some of our cases may have inadvertently obscured the
distinction between the evidence required to raise the presumption and the ultimate question
of undue influence. See, e.g., Gersbach, 1998-NMSC-013, ¶¶ 28-29 (stating that “[t]o give
rise to a presumption of undue influence, and the need for the beneficiary to rebut the
presumption, the evidence must justify an inference of misconduct which produced a desired
or foreseeable result[;]” and that “[u]nless the evidence presented by [contestant] justified
an inference that the gift was the result of improperly exerted influence, such questions do
not require an answer . . .”). Although we do not believe that the outcomes of any such cases
are unsound, these misstatements do not represent our law, because they seem to require that
the evidence of the basic facts must give rise to a natural inference of specific instances of
misconduct. To require the evidence of the basic facts to give rise to a natural inference of
specific instances of misconduct would render the presumption meaningless.

{15} For this reason, we disagree with the Court of Appeals that its role was to “consider
the existence of suspicious circumstances not as ends in themselves but as clues in
discovering the testator’s intent[,]” Chapman, 2008-NMCA-108, ¶ 17, and that the evidence
of undue influence “must do more than raise a suspicion.” Id. ¶ 13 (internal quotation marks
and citation omitted). On the contrary, because the fact finder could have relied upon the
presumption without any direct evidence “relevant to the determination of Gregoria’s
intent[,]” id. ¶ 47, we cannot demand anything more on review. As this Court explained in
Hummer v. Betenbough, 75 N.M. 274, 281, 404 P.2d 110, 115 (1965), under the then-
existing bursting bubble theory, “[t]he contestant need not offer at the outset any evidence
that undue influence was exerted.” (Emphasis added) (internal quotation marks and citation
omitted). Now that the bursting bubble theory has been abandoned, the contestant is never
required to offer direct evidence of undue influence; the presumption, if supported by
evidence, will of its own force take him or her to the finder of fact, even in the face of
contradictory evidence.

{16} We must also emphasize that we do not believe that these standards pose a risk to
testamentary freedom. While a presumption will take the contestant to the fact finder, the
fact finder must still determine whether the contestant has made his or her ultimate case for
undue influence by clear and convincing evidence. In so deciding, the fact finder may credit
or ignore the presumption. As a result, a canny contestant may not feel comfortable resting
on the bare quantum of evidence sufficient to raise the presumption of undue influence. We
trust that juries and judges acting as finders of fact will make the reasonable choice if asked
to weigh a contestant’s naked presumption against the well-supported explanations of a will
proponent. Our system of presumptions simply assures that it is the finder of fact, not the
judge as arbiter of law, that makes this determination.

{17} In sum, our review for sufficiency of the evidence will be satisfied if there was
enough evidence to allow the finder of fact to find clearly and convincingly that Viola and
Gregoria had a confidential relationship and that suspicious circumstances existed. We

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disagree with the Court of Appeals’ statements that the factors giving rise to the presumption
are for the appellate court merely “clues in discovering the testator’s intent[,]” Chapman,
2008-NMCA-108, ¶ 17, and that the evidence of undue influence “must do more than raise
a suspicion.” Id. at ¶ 13 (internal quotation marks and citation omitted). The role of the
appellate court reviewing sufficiency of the evidence to support a finding of undue influence
is simply to determine whether the presumption of undue influence could have been raised.

C. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE DISTRICT
COURT’S FINDING OF UNDUE INFLUENCE

{18} Our review for substantial evidence requires us to consider whether the evidence as
a whole was sufficient to prove the existence of a confidential relationship and suspicious
circumstances. See Strozzi, 120 N.M. at 544-45, 903 P.2d at 855-56. We first review the
evidence cited by the district court as supporting its findings of a confidential relationship
and each of the individual suspicious circumstances to determine whether it was relevant.
Although the Court of Appeals was incorrect when it concluded that much of this evidence
was not relevant to the issue of undue influence because it was not “relevant to the
determination of Gregoria’s intent[,]” Chapman, 2008-NMCA-108, ¶ 47, our cases do
require that the evidence depended upon be relevant to the presumption factors. See, e.g.,
Gonzales, 108 N.M. at 585-86, 775 P.2d at 1302-03 (“No New Mexico case has based a
presumption of undue influence on the fact that the testator was elderly without evidence that
the testator’s age had affected his or her mental ability.”). In this regard, Viola urges us to
strictly limit the evidence admissible to prove undue influence to facts closely connected in
time and subject matter to the execution of the will, but Siblings and Amicus suggest that
to do so would needlessly overlook evidence relevant to determine whether a confidential
relationship and suspicious circumstances existed. We conclude that in many instances, the
Court of Appeals’ focus on proof going directly to the ultimate fact of undue influence led
it to disqualify evidence that, while certainly not determinative in and of itself, could
properly have contributed to the district court’s conclusions. See id. at 586, 775 P.2d at 1303
(“None of the individual circumstances surrounding the execution of decedent’s will is
sufficient to raise a presumption of undue influence. That leaves the question of whether a
presumption of undue influence arises when the trial court’s findings are considered as a
whole.”).

1. CONFIDENTIAL OR FIDUCIARY RELATIONSHIP

{19} Citing the evidence that Gregoria had depended on Viola for transportation, meals,
and housekeeping, had given Viola a power of attorney and placed Viola’s name on her bank
accounts, the district court concluded that a confidential or fiduciary relationship existed
between the two. We agree with the Court of Appeals that this was supported by sufficient
evidence. Chapman, 2008-NMCA-108, ¶ 16. In Gersbach, we recognized that our previous
test for confidential relationships was potentially too broad because it only required a
showing that “one person place[d] trust and confidence in the integrity and fidelity of
another.” 1998-NMSC-013, ¶ 11 (internal quotation marks and citation omitted). However,

9
we found a confidential relationship where:

The record indicates [decedent] and [proponent] were close friends.
The two often spent time together alone and talked on the phone frequently,
conversations to which [contestant] was not a party. The record also
indicates that [decedent] trusted [proponent]. [Proponent] was permitted to
pay a minimal rent on the farm . . . . The trial court found that [decedent]
“had disclosed to [proponent] the location of substantial amounts of cash” .
. . and that [decedent] “loaned money to [proponent] without setting any
particular terms for the repayment of those debts.” These facts support the
district court's finding that a confidential relationship existed.

Id. ¶ 12 (citation omitted). The relationship between Viola and Gregoria certainly rose to
this level. Viola admitted that she had a close relationship with Gregoria, seeing her daily,
bathing her, buying her groceries, cleaning her house, accompanying her to doctor’s
appointments, and paying her bills. Viola also admitted that she had a joint checking
account with Gregoria and had received a durable power of attorney from her. Particularly
after Gregoria’s hearing declined following a stroke, testimony indicated that Gregoria used
Viola as an intermediary to communicate with others and may simply have allowed Viola
to speak for her. Finally, Gregoria allowed Viola to participate in the drafting and execution
of her will and the deeds. This level of trust and dependence satisfies even the most
stringent definitions of a confidential or fiduciary relationship.

2. SUSPICIOUS CIRCUMSTANCES

a. Old Age and Weakened Physical or Mental Condition

{20} The district court considered Gregoria’s ill health and resultant dependence on her
family as evidence contributing to its finding of suspicious circumstances. For instance, it
found that “[i]n [her] last few years Gregoria C de [B]aca also suffered from age related and
stroke related loss of cognitive functioning and memory loss.” The Court of Appeals held
that this evidence should not have contributed to a finding of undue influence, explaining
that evidence of Gregoria’s declining physical and mental condition did not demonstrate the
susceptibility to influence required under our case law. See Chapman, 2008-NMCA-108,
¶ 18.

{21} We disagree. It is true that “[n]o New Mexico case has based a presumption of
undue influence on the fact that the testator was elderly without evidence that the testator’s
age had affected his or her mental ability.” Gonzales, 108 N.M. at 585-86, 775 P.2d at 1302-
03. Evidence of ailments with no effect on cognition are simply irrelevant to determine
whether the decedent might have been unduly influenced. For this reason, in Lucero v.
Lucero (In re Estate of Lucero), 118 N.M. 636, 642, 884 P.2d 527, 533 (Ct. App. 1994),
superceded by statute on other grounds as recognized in Garcia v. Taylor (In re Estate of
Frietze), 1998-NMCA-145, ¶ 17, 126 N.M. 16, 966 P.2d 183, the Court of Appeals upheld

10
a directed verdict against will contestants, despite posthumous examinations of testator’s
medical records generally suggesting senile dementia and cortical atrophy, because
undisputed evidence suggested that the decedent was lucid at the time of the execution of
the will. Similarly, in Gonzales, 108 N.M. at 586, 775 P.2d at 1303, the Court of Appeals
found that the contestants had not raised a suspicion of undue influence when they showed
the decedent to be old and sick, but the only evidence regarding her mental state showed her
to be alert. Further, when mental weakness is the only suspicious circumstance in a case,
even more definitive evidence of susceptibility may be required. See In re Estate of Keeney,
121 N.M. 58, 62, 908 P.2d 751, 755 (Ct. App. 1995) (holding that evidence of ill health and
emotional instability would not, without more, have supported a presumption of undue
influence, but that when combined with the testimony of a psychologist who stated that the
decedent’s health problems would lead to susceptibility to influence, this evidence, with little
else in the way of suspicious circumstances, was sufficient to raise a genuine issue of fact
regarding the existence of undue influence).

{22} Although Siblings did not present the sort of overwhelming evidence of susceptibility
that might justify raising the presumption in and of itself, the evidence they did produce of
Gregoria’s susceptibility was still relevant. See Chapman, 2008-NMCA-108, ¶ 18. Because
it concluded to the contrary, the Court of Appeals may have overlooked the following
evidence: Gregoria suffered a stroke that had detrimental effects on her cognition, memory,
and hearing; she sustained a series of physical maladies including multiple hip replacements,
bone fractures, and heart problems; and she took a number of medications with possible
cognitive side effects. We agree that without evidence of additional suspicious
circumstances, this might not be enough, even assuming the presence of a confidential
relationship, to raise the presumption of undue influence. See Keeney, 121 N.M. at 62, 908
P.2d at 755. Also, we concede that it might make a stronger case to secure expert testimony
of susceptibility even if other suspicious circumstances are present. See, e.g., Montoya, 113
N.M. at 109, 823 P.2d at 909. However, because this evidence goes directly to Gregoria’s
mental clarity at the time of the will’s execution, we see no reason to categorically exclude
it from the district court’s ultimate consideration of the evidence as a whole, even if it only
marginally contributes to that court’s conclusion. See, e.g., Peralta v. Peralta,
2006-NMCA-033, ¶ 22, 139 N.M. 231, 131 P.3d 81 (considering evidence of the decedent’s
“advanced age and physical frailty” as contributing to the presumption of undue influence
when considered with other suspicious circumstances as a whole). Thus, we disagree with
the Court of Appeals that “there was insufficient evidence to justify an inference that either
Gregoria’s age or her health is a suspicious circumstance.” Chapman, 2008-NMCA-108,
¶ 18.

b. Unnatural or Unjust Disposition

{23} The district court found that Gregoria’s will was an “[unjust] and unnatural
disposition” because “[t]he conveyances and the Will were at variance with the previous
declarations and known affections of Gregoria C de Baca.” The Court of Appeals disagreed.
It noted first that because Viola is Gregoria’s daughter, “[t]he devise in the present case does

11
not fit easily into the traditional definition of an unnatural gift because although Viola is a
natural object of Gregoria’s bounty, so were the other eight children . . . .” Chapman, 2008-
NMCA-108, ¶ 19. The Court explained that the mere fact that the will did not distribute
Gregoria’s property as would the intestacy statutes could not contribute to a finding of undue
influence; instead, the Court of Appeals required “evidence that the division of property did
not reflect the intent of the testator . . . .” Id. The Court gave some credence to the
statements of Siblings and other witnesses that Gregoria had expressed intentions and
affections contrary to the will, see id. ¶¶ 22, 24-25, but found more convincing the evidence
“that when Gregoria wanted to make a gift, she made it.” Id. ¶ 23. It also noted that “[t]here
is no evidence that Gregoria intended to divide her property equally among her children
. . . .” Id. ¶ 26. The Court concluded that the evidence “does not provide insight into
Gregoria’s intentions” and could not contribute to a finding of suspicious circumstances. Id.

{24} Although we agree with the Court of Appeals that some of the evidence ostensibly
contributing to the district court’s ruling that the will was an unnatural or unjust disposition
was not relevant, we reach this conclusion partly in a different manner. To begin, however,
we concur with the Court of Appeals that Gregoria’s will does not fit the traditional
definition of an unnatural disposition. In Gersbach, we explained that “[a] ‘natural
disposition’ has been defined as one ‘which provides for a testator’s heirs at law. As one
court succinctly put it: ‘[T]he natural object of a will maker’s bounty is one related to
him/her by consanguinity.’” 1998-NMSC-013, ¶ 24 (citation omitted). Viola is one of
Gregoria’s children, and as such, Gregoria’s testamentary gift to her was not unnatural, even
if Gregoria’s other children were excluded. If any transfer that diverged from the intestacy
statute could be considered unnatural, testamentary freedom would be threatened.

{25} However, our cases have also defined unnatural or unjust dispositions to include
transfers of property at odds with a testator’s previously expressed intentions and affections.
For instance, in Doughty, 117 N.M. at 289-90, 871 P.2d at 385-86, the Court of Appeals
upheld a trial court’s finding of an unnatural or unjust disposition when one child had been
effectively disinherited via inter vivos transfers to another child, but the evidence, including
the decedent’s will, indicated “that [decedent] enjoyed a close relationship with both her
children and she commented that she wanted [both children] to share her estate equally.”
Similarly, in Montoya, 113 N.M. at 111-12, 823 P.2d at 911-12, we upheld a trial court’s
finding of undue influence based in part on a suspicious unnatural or unjust disposition when
“the gift to [decedent’s step-grandson] may have been inconsistent with [decedent]’s
previously expressed intention” to give the property to her son.

{26} In this case, the bulk of Siblings’ testimony relating to this factor concerned
Gregoria’s real property. Five witnesses testified that Gregoria had planned to give her
house to Gilbert, who received just one dollar in the will. The only other evidence potentially
going to the issue of unjust disposition concerned the falsehood of some of the assertions in
the will. For instance, the will stated that Rosina had not seen Gregoria for twenty years, had
stolen and never paid back $18,000, and had been unappreciative and rude. Rosina testified
that she had seen Gregoria over the last twenty years, had never taken $18,000, and had not

12
behaved as the will claimed she did. The will stated that Gilbert had refused to pay the bills
while living in Gregoria’s house, had made unpleasant remarks or been moody, and had
never repaid loans. Gilbert testified that he had attempted to pay the bills, had a close
relationship with his mother and had not made such remarks, and had provided some money
to Gregoria, but had been assured by her that he did not need to repay the full amount of the
loans.

{27} We disagree with the Court of Appeals’ reasons for rejecting this evidence. First, the
Court stated that because Gregoria gave gifts when she was so inclined, the testimony about
the real property was not relevant to undue influence. Our standard of review precludes us
from re-weighing the evidence on appeal. See Doughty, 117 N.M. at 287, 871 P.2d at 383.
Second, we can find no support for the Court’s requirement of evidence that the testator
intended to divide her property equally for a contrary disposition to be unjust. If the will had
been intended to dispose of property contrary to Gregoria’s previously stated intentions, we
see no reason that such evidence should be categorically excluded from contributing to a
suspicion of undue influence.4

{28} Nevertheless, we still hold that the evidence concerning the real property was not
relevant to whether the will was an unjust disposition. We reach this conclusion because
there is no evidence that the will was intended to dispose of any of the real property that was
the focus of Siblings’ evidence. On the contrary, the warranty deeds to Viola were the
instruments that were intended to dispose of Gregoria’s real property, including the house
that Siblings claimed was to be given to Gilbert. Although Siblings’ actions to void the
deeds have raised the potential that the real property could in fact pass via the residuary
clause of the will, no evidence suggests that this was part of Viola’s design. To the contrary,
the residuary clause was added to the will at the suggestion of an attorney more than a year
after the execution of the deeds. Although, as we discuss below, Viola participated heavily
in drafting earlier versions of the will around the time of the execution of the deeds, these
earlier versions included no residuary clause and specifically stated that the real property had

4
We note that Gersbach may have suggested that the bar for proving unnatural or
unjust dispositions in New Mexico is higher than this. 1998-NMSC-013, ¶ 28. However,
the authority relied upon in this portion of Gersbach is Margaret B. Alcock, Comment,
Estates and Trusts, 13 N.M. L. Rev. 395 (1983), and it appears to contain a crucial error.
Alcock’s article stated that In re Will of Ferrill (Thorp v. Cash), 97 N.M. 383, 640 P.2d 489
(Ct. App. 1981) made it “virtually impossible for a testator who is old and infirm to dispose
of his property in a manner that a judge or jury might interpret as unnatural or unjust.”
Alcock, supra at 401. Given that the Ferrill Court approved a finding of unnatural or unjust
disposition, and given the context within Alcock’s article, it seems that she meant to write
that it is virtually impossible that a judge or jury might not interpret any given disposition
as unjust or unnatural after Ferrill. As we have explained, the presumption makes it easier
for a will contestant to get before the jury, although it may not make it any easier for that
contestant to win.

13
already been conveyed to Viola. Because no evidence suggests that the will was intended
by either Viola or Gregoria to convey Gregoria’s real property, evidence about Gregoria’s
intentions regarding the real property are irrelevant to our determination of whether the will
was an unjust disposition.

{29} Without this evidence, precious little remains to show that Gregoria’s will was an
unjust disposition; Siblings’ other testimony stated that the sentiments in the will were false,
but did not suggest that Gregoria had any intention to leave other parts of her estate to them.
Such evidence alone is certainly not sufficient to support a finding of suspicious
circumstances. However, it would be arbitrary to refuse to consider evidence that a will is
full of false or unrepresentative assertions about the people it disinherits. See 3 William J.
Bowe & Douglas H. Parker, Page on the Law of Wills § 29.126, at 812 (2004) (explaining
that “evidence is admissible to explain the actual relations which existed between testator
and the beneficiaries under the will, on the one hand, and the relations between the testator
and the natural objects of his bounty, on the other, including the conduct of the beneficiaries
and heirs respectively toward testator, and his actual feelings for them, as far as such
conduct, feelings, and the like, furnish motives and reasons for or against the will” (footnotes
omitted)). Since evidence of Gregoria’s relations with her children appears somewhat
relevant to the question of undue influence, we see no reason to hold that the district court
should not have considered it along with the other evidence.

c. Participation in the Procurement

{30} The district court found that “Viola Varela was directly involved in the procurement
of the Will and the deeds to herself.” The Court of Appeals held that there was insufficient
evidence to support this finding. Chapman, 2008-NMCA-108, ¶ 27. Citing Gonzales, 108
N.M. at 586, 775 P.2d at 1303, the Court of Appeals held that Siblings had to show that
Viola “became the beneficiary of the will by securing its legal execution.” Chapman, 2008-
NMCA-108, ¶ 27. In other words, the proponent’s participation had to be “necessary for the
legal execution of the will.” Id. ¶ 29. As a result, the Court refused to consider evidence of
Viola’s participation in creating earlier versions of the will that never took legal effect, or
the extent to which she participated in non-legally required ways in the will’s final
execution. Id. ¶ 27. Because it was undisputed that Viola took no part in the ultimate legal
execution of the will and because “no evidence that Viola’s actions relating to the execution
of the will influenced Gregoria’s stated intent[,]” the Court of Appeals found insufficient
evidence that Viola participated in procuring the will. Id. ¶¶ 29-30. We disagree.

{31} First, the Court’s definition of participation in the procurement was incorrect. In
Gonzales, the case relied upon by the Court of Appeals, we simply observed that because the
will proponent’s signature on the will was not legally required for its execution, “[i]t cannot
be said that [the proponent] participated in procuring the will by securing its execution when
his signature was unnecessary.” 108 N.M. at 586, 775 P.2d at 1303 (emphasis added). This
holding does not require that the contestant have taken a legally required role in the will’s
execution to have participated in its procurement; instead, it merely states the obvious: if

14
the proponent’s role was not legally required, the contestant cannot argue that the proponent
participated in the procurement by securing its execution. The proponent still might have
participated in the procurement in other ways.

{32} Other New Mexico case law supports this interpretation. In Doughty, 117 N.M. at
290, 871 P.2d at 386, the Court of Appeals found substantial evidence to support the district
court’s finding of participation in the procurement relating to inter vivos transfers that
effectively disinherited the decedent’s daughter. The decedent had wanted to make an inter
vivos gift of Chevron stock to her children, but she also wanted to receive dividends on the
stock throughout her life. Id. at 286-87, 871 P.2d at 382-83. However, the decedent’s
daughter would only accept the gift if income taxes on the dividends would be taken from
the dividends. Id. Decedent’s son communicated this to the decedent, which upset her, but
did not inform the daughter that the decedent was upset. Id. at 287, 871 P.2d at 383. This
precipitated the decedent’s inter vivos transfer of other assets to the son. Id. at 290, 871 P.2d
at 386. The son further enabled the transfer of these assets by visiting the bank, instructing
the bank to prepare the required documents, and delivering them to his mother at the
hospital. Id. The son was not present at the signing, but the Court of Appeals nevertheless
concluded that “he initiated, pursued, and completed the entire process.” Id. Similarly, in
Hummer, 75 N.M. at 284, 404 P.2d at 117, we found evidence to support the trial court’s
finding of participation in the procurement where the proponent of the will, though not
legally necessary for the execution of the will, id., had taken decedent to the attorney to
execute it and had convinced her en route of everything it should contain. Id. at 277, 284,
404 P.2d at 112, 117.

{33} With these cases in mind, we conclude that the evidence considered by the district
court was relevant to the question of undue influence. Evidence was presented that about
a year and a half before the will was executed, a separate and nearly identical document had
been signed by Gregoria and notarized. Victoria Varela, Viola’s daughter, testified that she
had typed this earlier will based on Gregoria’s dictation, without reference to any notes or
drafts. Viola, in her testimony, adopted her daughter’s version of events. However, Viola
also admitted that before Victoria had typed the earlier will, Viola had purchased a will
template at a stationery store and typed it up herself, creating a document nearly identical
to the earlier will that Victoria claimed to have written from Gregoria’s statements without
reference to any notes or drafts. Despite this revelation, Viola persisted in claiming that the
template was not used to create the earlier will. Moreover, Viola’s and Victoria’s testimony
contradicted statements made by Viola elsewhere in her testimony and in her deposition that
her mother had written out a rough draft which was used to type the earlier will.

{34} After the earlier will was drafted, Viola took her mother to have it notarized, but
failed to follow the formalities required under the Probate Code. Attorney Ruben Rodriguez
testified that a year and a half later, Viola contacted him to have the earlier will “check[ed]
and redo[ne,]” apparently specifying that the language in the earlier will should be copied
exactly. Viola and Gregoria then came to Rodriguez’s office on two different occasions.
The first time, both Viola and Gregoria were present, and they explained again that they

15
wanted a more professional will, but that it should contain the same language as the earlier
will. Accordingly, the will as it was finally executed is largely identical to the earlier will,
with the exception of the addition of a residuary clause to Viola’s benefit. The second time
they visited Rodriguez, Viola was asked to leave while Rodriguez confirmed that the will
reflected Gregoria’s intent and then properly executed it.

{35} From this evidence, the finder of fact reasonably could have inferred that Viola both
wrote the language that ended up in the will and also shepherded it through multiple drafts
and meetings with a notary and an attorney until the will had been properly legally executed
in nearly the exact form in which Viola had first drafted it. Common sense dictates that this
sort of conduct could be considered a more suspicious form of participation in the
procurement of a will than merely affixing a legally required signature. The district court
properly considered this evidence in making its ultimate determination of whether the
presumption was raised.

d. Domination or Control

{36} The district court made the following findings relating to domination or control:

11. Viola Varela used her position of confidence and power to her
advantage to influence and control the actions and decisions of Gregoria C
de Baca.

12. Viola Varela used her position of influence and control to
manipulate the bank accounts of Gregoria C de Baca.

....

17. Viola Varela had an assertive and domineering personality.
Gregoria C de Baca was submissive when around Viola.

18. Viola Varela attempted to poison the relationship between
Gregoria C de Baca and her other children by making disparaging and
derogatory remarks about them and attempting to restrict their access to Ms.
C de Baca.

19. Viola Varela interfered with the efforts of Gregoria C de Baca to
obtain independent legal counsel.

{37} Using Hummer as its touchstone, the Court of Appeals reversed the district court,
holding that there was insufficient evidence to demonstrate control and dominance, since
“[t]here is no indication that Gregoria was afraid of Viola or that Viola induced Gregoria to
believe things that she otherwise would not have believed.” Chapman, 2008-NMCA-108,
¶ 32. The Court acknowledged the evidence that Viola spoke for Gregoria and disparaged

16
the other siblings, but noted that no evidence had shown that the other siblings’ relationships
with their mother were interrupted by Viola. Id. The Court also noted the testimony of the
psychologist who evaluated Gregoria and of Gregoria’s doctor, both to the effect that
Gregoria had not been dominated by Viola. Id. ¶¶ 33-34. As for Viola’s alleged interference
with Gregoria’s attempt to secure legal counsel to return the land deeded to Viola, the Court
of Appeals held that “[e]ven if Viola influenced Gregoria’s decision to fire [the attorney],
we do not believe that evidence supports a further inference that Viola manipulated Gregoria
into making a will that did not reflect her intentions.” Id. ¶ 37. None of this evidence helped
to decide “the ultimate issue–whether Gregoria intended the distribution of her property that
is set out in the will.” Id. ¶ 38.

{38} We see no reason to categorically exclude the evidence considered by the district
court, even though, under our precedents, it might not be sufficient by itself to decide the
issue of undue influence. The Court of Appeals was correct that the decedent in Hummer
was more dominated by the proponents of her will than is true in this case. 75 N.M. at 284,
404 P.2d at 117 (“There is evidence that decedent was easily influenced, made no
independent suggestions herself, agreed with anything anyone stated to her, and that she
agreed with what the last person to talk to her had to say.”). However, Hummer gives no
indication that this level of domination is the baseline below which evidence of dominance
or control may not even be considered. We do not see why less definitive evidence should
not be considered. See, e.g., Peralta, 2006-NMCA-033, ¶ 22 (taking into account evidence
that “[two of the decedent’s children] were maligning [a third child] to [the decedent] in an
apparent effort to isolate [the decedent]”). Other authorities also state a less exacting
standard: 3 Bowe & Parker, supra § 29.78, at 692-93 opines that “[e]vidence which tends
to show that the beneficiary acquired control over testator’s mind before the will was made,
and retained such control beyond the period at which the will was executed, is admissible,
even if such evidence relates to a remote period of time” (footnotes omitted).

{39} Moreover, this section of the Court of Appeals’ opinion appears to draw some
inferences against the party that prevailed at trial. See Chapman, 2008-NMCA-108, ¶¶ 33,
37, 40. For instance, the evidence presented by a psychologist, the family doctor, and the
attorney who executed the will that Gregoria was not dominated by Viola is evidence
contrary to the district court’s ultimate finding of undue influence. As we have noted, when
reviewing for sufficiency of the evidence, “[w]e consider the evidence in the light most
favorable to the prevailing party and disregard any inferences and evidence to the contrary.”
Doughty, 117 N.M. at 287, 871 P.2d at 383. The question is whether, disregarding these
witnesses as the finder of fact was entitled to do, there was evidence to support a finding of
control or dominance.

{40} We find support in the record for all of the findings of fact made by the district court
on this point: that Viola may have taken part in firing an attorney retained by Gregoria to
investigate the deeds; that Viola spoke for Gregoria; that Viola disparaged the other siblings,
although not to the point of estranging them; that Gregoria was submissive around Viola;
and that Viola manipulated Gregoria’s bank accounts.

17
{41} We see no reason to categorically exclude this evidence from consideration, even if
it might not be sufficient in and of itself to raise the presumption of undue influence. We
find curious, for example, the Court of Appeals’ statement that “[e]ven if Viola influenced
Gregoria’s decision to fire [her attorney], we do not believe that evidence supports a further
inference that Viola manipulated Gregoria into making a will that did not reflect her
intentions.” Chapman, 2008-NMCA-108, ¶ 37. The firing in question occurred only a few
months after the execution of the will and would certainly seem to suggest that Viola was
exerting control over Gregoria, if accepted as true by the finder of fact. Although this
evidence does not directly go to the issue of Gregoria’s intent regarding the will, it flies in
the face of reason to hold that it could not contribute in any way to raising a suspicion of
undue influence.

e. Secrecy

{42} The district court found that “Viola Varela was secretive. She did not keep Gregoria
C de Baca or her brothers and sisters informed of some actions taken concerning the
properties and assets of Gregoria C de Baca.” The Court of Appeals again disagreed,
holding that there was insufficient evidence to support this finding because other family
members had already discovered the deeds after Viola’s son angrily boasted of owning all
of Gregoria’s property. Chapman, 2008-NMCA-108, ¶ 44. They were therefore able to
confront Gregoria about the property transfer, unlike the contestant in Doughty, who only
found out about her mother’s inter vivos transfers when it was too late to ask her about them.
Id. For this reason, the Court of Appeals concluded that the evidence of secrecy did not help
“this Court determine whether the transfer was not the mother’s intention.” Id. Our analysis
differs.

{43} It is undisputed that despite ample opportunities, Viola did not tell her siblings or
Gregoria’s other potential heirs, other than her own children, about the will. This seems to
be sufficient evidence of secrecy to us, but because the Court of Appeals addressed the
deeds, so will we. Siblings discovered the deeds through Viola’s son’s inadvertence and did
not discover the will until after Gregoria’s death. It is true that because of the nature of
many undue influence cases, secrecy often prevents the contestant of the will or other
conveyance from determining whether the testator or grantor had been unduly influenced by
directly asking him or her. See, e.g., Doughty, 117 N.M. at 287, 290, 871 P.2d at 383, 386.
However, this eventuality seems to be due to cases involving the dead rather than an
underlying policy behind the inquiry into secrecy. Simply because Gregoria’s children were
able to ask her about the deeds does not indicate to us that Viola’s secrecy was any less
suspicious, especially with regard to the will. Indeed, when Siblings asked Gregoria about
the deeds, Gregoria claimed that she had not executed them. While this gave Siblings the
opportunity to attempt to undo some of Viola’s alleged undue influence, their failure to do
so during Gregoria’s lifetime–possibly due to improper intervention by Viola into their
efforts to find an attorney for Gregoria–does not negate the suspicious character of Viola’s
secrecy. Moreover, if Siblings had succeeded in their first effort to revoke the deeds, they

18
never could have confronted Gregoria with the provisions of the will that are directly in
question in this case; Siblings did not discover the will until after Gregoria died. This seems
to us to be a perfect example of the sort of conduct a fact finder might properly take into
account in deciding whether suspicions were raised that a will proponent was attempting to
prevent others from discovering his or her undue influence.

f. Lack of Consideration

{44} It does not appear that the district court made any finding relevant to the issue of lack
of consideration. However, citing Gersbach, the Court of Appeals concluded that the
evidence of Viola’s service to Gregoria and the opinions of various witnesses that Gregoria
wanted Viola to inherit her estate either helped to rebut the presumption of undue influence
or prevented it from arising in the first place. Chapman, 2008-NMCA-108, ¶ 45. This is a
misreading of our law, but an understandable one given the lack of clarity on this point found
in Gersbach. On the one hand, Gersbach notes that “lack of consideration for a testamentary
gift ordinarily is not a suspicious circumstance. Ordinarily, a testator intends to confer a
benefit.” 1998-NMSC-013, ¶ 20. On the other hand, Gersbach also stated that “the
existence of consideration may help rebut a presumption of undue influence” or that “a
friendship of long standing may help prevent a presumption of undue influence from
arising.” Id. ¶ 21 (emphasis added).

{45} Gersbach was correct to the extent that it suggested that lack of consideration is not
a suspicious circumstance in many cases involving wills. Montoya, 113 N.M. at 111, 823
P.2d at 911 (holding that “[a]lone, the lack of consideration may not be a suspicious
circumstance,” but that in combination with other suspicious circumstances that made a gift
unlikely, it might be considered). It was also correct that evidence of consideration certainly
might be taken into account by the finder of fact in deciding whether the contestant has met
his or her burden of persuasion–although, as discussed above, it is not clear whether this can
accurately be described as “rebutting the presumption.” However, Gersbach also suggested
that evidence of friendship or other consideration can prevent a presumption from arising
in the first place. Although this statement may contain a grain of truth–for example, the bar
for proving that an unjust disposition could be higher when the will proponent is a long-
standing friend than when he or she is a stranger–this factor cannot be a free-standing
invitation for the appellate court to reweigh the evidence presented by the parties. To take
Viola’s friendship and service into consideration in deciding whether the presumption arose
in this case would amount to a drawing of inferences contrary to the findings of the district
court. Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123
N.M. 329, 940 P.2d 177 (“The question is not whether substantial evidence exists to support
the opposite result, but rather whether such evidence supports the result reached.”).

g. Viewed as a Whole, There Was Sufficient Evidence of Suspicious
Circumstances

{46} We have found support for the district court’s findings of old age or weakened

19
physical or mental condition; participation in the procurement, domination, or control; and
secrecy. Although these factors in combination will not necessarily raise a suspicion of
undue influence in all cases, and the specific pieces of evidence in this case might not be
enough individually to justify a finding of suspicious circumstances, we hold that under the
facts of this case, the district court was justified in concluding that suspicious circumstances
existed. The finder of fact could reasonably have found that Viola, who had a relationship
with Gregoria suggesting some measure of dominance, drafted and secured the execution of
a will for Gregoria benefitting herself and disparaging her siblings at a time when Gregoria
was suffering from various ailments that could have affected her cognition, and then kept the
will secret from Gregoria’s other children until after Gregoria’s death. Together, this
evidence was sufficient to allow the trier of fact to conclude the existence of suspicious
circumstances by clear and convincing evidence.

D. THERE WAS SUFFICIENT EVIDENCE TO RAISE THE PRESUMPTION
AND SUPPORT THE DISTRICT COURT’S FINDING OF UNDUE
INFLUENCE

{47} Because there was sufficient evidence for the finder of fact to conclude that Viola
and Gregoria shared a confidential or fiduciary relationship and additionally that suspicious
circumstances existed, there was by definition sufficient evidence to raise the presumption
of undue influence. Once raised, this presumption “permit[ted] the fact finder to draw an
inference of the presumed fact from proof of the basic or predicate fact.” Roberts Oil Co.,
113 N.M. at 756, 833 P.2d at 233. Therefore, we must conclude that there was sufficient
evidence to support the district court’s finding of undue influence.

III. CONCLUSION

{48} Because there was sufficient evidence presented at trial to support the district court’s
finding that Gregoria’s will was the product of undue influence, we reverse the Court of
Appeals and affirm the district court. We remand the case to the Court of Appeals to
determine the question of undue influence regarding Gregoria’s deeds to Viola.

{49} IT IS SO ORDERED.

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

WE CONCUR:

___________________________________
PATRICIO M. SERNA, Justice

___________________________________

20
PETRA JIMENEZ MAES, Justice

___________________________________
CHARLES W. DANIELS, Justice

___________________________________
KAREN L. PARSONS (sitting by designation)

Topic Index for Chapman v. Varela, No. 31,234

AE APPEAL AND ERROR

AE-AR Appellate Review
AE-SB Substantial or Sufficient Evidence

CP CIVIL PROCEDURE

CP-BP Burdens of Proof
CP-FD Findings and Conclusions
CP-PF Prima Facie Case

EV EVIDENCE

EV-PS Presumptions
EV-PF Prima Facie Case
EV-RC Relevancy, Materiality, and Competency
EV-SS Substantial or Sufficient Evidence

WL WILLS, TRUSTS AND PROBATE

WL-UI Undue Influence

21