IN THE

SUPREME COURT OF THE STATE OF ARIZONA

YVETTE ROSENBERG,

Plaintiff/Appellant,

v.

MARILYN KOKE SANDERS,

Defendant/Appellee.

No. CV-22-0170-PR

Filed December 11, 2023

Appeal from the Superior Court in Maricopa County

The Honorable Andrew J. Russell

No. CV2018-013707

AFFIRMED

Opinion of the Court of Appeals, Division One

253 Ariz. 279

VACATED

COUNSEL:

Mark House (argued), Andrea B. O’Neill, Amanda L. Barney, Becker & 

House, PLLC, Scottsdale; and Eileen Dennis GilBride (argued), Jones, 

Skelton & Hochuli P.L.C., Phoenix, Attorneys for Marilyn Koke Sanders

David L. Allen, David N. Farren (argued), Jaburg & Wilk, P.C., Phoenix, 

Attorneys for Yvette Rosenberg
ROSENBERG V. SANDERS

Opinion of the Court

2 

JUSTICE KING authored the Opinion of the Court, in which CHIEF 

JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES

BOLICK, LOPEZ, BEENE, and MONTGOMERY joined.

JUSTICE KING, Opinion of the Court:

 

¶1 Alex Brandt signed a beneficiary deed leaving two of his 

properties to Marilyn Sanders on his death. After Brandt’s death, his 

niece, Yvette Rosenberg, sued, claiming that Sanders procured the deed 

through undue influence. The trial court entered summary judgment for 

Sanders.

¶2 Nearly sixty years ago, this Court set forth eight

non-exclusive factors that are “treated as significant indicia of the presence 

or absence of [undue] influence” in the execution of a testamentary 

document. In re Estate of McCauley (“McCauley”), 101 Ariz. 8, 10–11 (1966). 

We must now determine whether statements that a grantor made after

executing a deed should be considered as a new ninth factor under the 

McCauley inquiry, and whether Brandt’s alleged post-execution statements 

are relevant to Rosenberg’s undue influence claim. 

¶3 Although we decline to add a new ninth factor to McCauley, 

we recognize that a post-execution statement may be relevant in some 

cases alleging undue influence. But that is not the case here. Brandt’s

alleged post-execution statements are irrelevant to Rosenberg’s undue 

influence claim. We affirm the trial court’s grant of summary judgment 

in favor of Sanders.

BACKGROUND

¶4 Brandt and Sanders first met and began dating in California

during the late 1980s. Brandt proposed to Sanders in 1994, and they 

moved to Arizona. They never married. 

¶5 Brandt purchased three properties in Arizona—one home 

where Brandt and Sanders resided and two rental properties. The titles to

the two rental properties were originally conveyed to Brandt and Sanders 

as joint tenants with rights of survivorship. After Brandt and Sanders
ROSENBERG V. SANDERS

Opinion of the Court

3

broke up in 1997, Sanders transferred the titles on both rental properties to 

Brandt.

¶6 Thereafter, Brandt began dating Marilyn Mishkin. In 2001, 

Brandt signed a beneficiary deed naming Mishkin as the beneficiary of his 

home and two rental properties upon his death. In 2004, Brandt sold one 

of the rental properties. Brandt and Mishkin also never married, and they 

broke up in approximately 2005.

¶7 Thereafter, Brandt executed a new beneficiary deed naming

Rosenberg as the beneficiary of his home and one remaining rental property

(collectively the “Properties”) upon his death. Rosenberg, who lived in 

Canada, was the daughter of Brandt’s sister, Susan Rosenberg (“Susan”).

According to Rosenberg, Brandt spoke over the phone with Susan “almost 

every day” and with Rosenberg “regularly,” and he was very close to both 

of them. Brandt had no family in Arizona.

¶8 Brandt and Sanders resumed a relationship between 2006 and 

2008. Although Sanders had been living in California, she eventually 

returned to Arizona. Sanders purchased a condominium for herself in 

Peoria, but at some point she moved in with Brandt.

¶9 Brandt’s health began to deteriorate in late 2016. He was 

taken to the emergency room and hospitalized on different occasions up 

until his death in 2018. From late 2016 to early 2017, Sanders cooked 

Brandt’s meals and drove him to doctor appointments and the hospital. 

Nonetheless, Brandt still drove himself very short distances.

¶10 Brandt was hospitalized from March 9 to 11, 2017, and his 

discharge summary noted “cognitive impairment,” “memory loss,” and 

“consult neurology.” On March 30, 2017, however, another doctor 

referred to Brandt’s insight as “normal” and conversation as “appropriate.” 

Then, in June 2017, Brandt’s primary care physician noted that Brandt was 

complaining of “fatigue” and “not thinking as clearly as normal.” But in 

September 2017, Brandt received a routine physical exam and obtained a 

perfect score on a cognitive assessment. Brandt had various other medical 

issues in 2017, including fatigue, weight loss, weakness, blurry vision, 

diabetes, and kidney disease.
ROSENBERG V. SANDERS

Opinion of the Court

4 

¶11 On April 6, 2017, Brandt executed a deed naming Sanders as 

the beneficiary of the Properties upon his death (“2017 deed”), and 

Rosenberg was removed as the beneficiary. On April 12, 2017, Brandt 

recorded the 2017 deed with the Maricopa County Recorder’s Office, and 

the deed became a public record. See A.R.S. § 33-405(E) (“A beneficiary 

deed is valid only if the deed is executed and recorded as provided by law 

in the office of the county recorder of the county in which the property is 

located before the death of the owner or the last surviving owner.”).

¶12 Sanders testified at her deposition that Brandt presented the 

2017 deed to her as a birthday gift two months later (in June 2017) and that

she did not know that he had signed the deed prior to her birthday. 

Sanders also produced an affidavit of her friend, Cynthia Brown, stating

that a couple of days after Sanders’ birthday, “Alex mentioned to me that 

he had put [Sanders’] name on the deed to his real property as a birthday 

present to her.”1 Although Rosenberg disputes these assertions, she did

not produce any evidence to the contrary. 

¶13 At her deposition, Rosenberg testified as follows concerning 

the 2017 deed: 

Q. Do you have any belief or any evidence to support 

that Alex didn’t prepare this document?

A. I don’t have any belief either way. I don’t have

evidence either way.

Q. So he signs the document April 6th. It’s recorded on 

April 12th. Do you have any evidence to suggest that he 

is not the one that directed it to be recorded?

A. I don’t have any evidence either way.

Q. Do you have any evidence to suggest that he didn’t 

prepare it?

1 In her response, Rosenberg did not object to Brown’s affidavit on hearsay 

grounds. 
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Opinion of the Court

5

A. I don’t have any evidence either way.

Q. Do you have any evidence at all that Marilyn was 

active in the procurement of this document?

A. I don’t have any evidence either way.

¶14 According to Rosenberg, Brandt never told her or other 

family members about executing the 2017 deed. But Rosenberg testified 

at her deposition that, with the sole exception of when he named Rosenberg

on the beneficiary deed in 2005, Brandt did not discuss his financial affairs

with her. In addition, Rosenberg did not produce any evidence that she

had asked Brandt what he had done with the deed or that his silence with 

relatives on this type of financial matter was unusual.

¶15 In late-May 2018, nearly fourteen months after Brandt 

executed the 2017 deed, he became very ill and was taken to the emergency 

room with “a 48 hour history of altered mentation,” hypotension, and a 

recent history of pneumonia. He was hospitalized for several days. On 

June 2, 2018, Brandt wanted to leave the hospital, but medical staff 

concluded that he should remain because he was “not decisional.”

¶16 Rosenberg spoke with Brandt over the telephone while he 

was in the hospital, and she described him as “very distressed.”

Thereafter, Rosenberg and Susan traveled to Arizona to visit Brandt. 

Rosenberg claims that Brandt made several statements to her at the 

hospital—specifically, that he was “afraid of” Sanders, “she was trying to 

kill him and steal his assets,” “she had taken his cell phone, thereby 

preventing him from calling” Rosenberg and Susan, and “he wanted the 

hospital to block [Sanders] from coming to his room or from talking to him 

on the phone.” Rosenberg further claims that Brandt asked her to cancel 

the credit card he gave Sanders, “check the status of his checking and credit 

card accounts to determine whether [Sanders] accessed his cash funds,” and 

“retrieve the contents of his safety deposit box because he was concerned 

that [Sanders] would attempt to remove the contents.”

¶17 On June 3, 2018, a hospital psychiatrist visited Brandt to 

assess his mental capacity. He described Brandt as “alert, oriented, and 

pleasant and cooperative.” The psychiatrist’s report noted that Brandt 
ROSENBERG V. SANDERS

Opinion of the Court

6

was “being treated for an acute respiratory decompensation” and 

“requir[ed] oxygen to maintain his saturation.” Although he previously

did not have capacity to leave the hospital while he was recovering from 

his infection, “his mental status [was] improving.” The psychiatrist

further noted in the report, “The patient states that he no longer trusts his 

domestic partner with whom he has lived over the past 10 years. He did 

not want to get into details, but his family is concerned that she may [be]

trying to take advantage of him by getting him to sign paperwork about his 

rental properties.” The psychiatrist concluded that Brandt had capacity to 

make medical decisions, including the designation of a power of attorney.

¶18 On June 4, 2018, Brandt signed a Power of Attorney 

appointing Rosenberg as his agent with respect to his personal finances.

Brandt also signed a Medical Power of Attorney appointing Susan to make 

medical decisions on his behalf. On June 5, 2018, Brandt was discharged 

from the hospital, and he returned home with Sanders.

¶19 On September 1, 2018, Brandt passed away at his home. 

After Brandt’s death, Sanders informed Rosenberg of the 2017 deed.

¶20 Rosenberg filed suit against Sanders, seeking to invalidate the 

2017 deed as a product of undue influence. Sanders moved for summary 

judgment. After briefing and oral argument, the trial court addressed 

each of the eight McCauley factors and concluded that Rosenberg had “not 

presented evidence from which a reasonable trier of fact could conclude 

that [Sanders] unduly influenced Mr. Brandt into executing the [2017] 

Beneficiary Deed.” Because there were “no genuine issues of material fact 

in dispute on this point,” the court entered summary judgment for Sanders.

¶21 The court of appeals largely agreed with the trial court’s 

findings as to the eight McCauley factors, stating that “Rosenberg did not 

present enough evidence to defeat summary judgment under the McCauley

factors alone.” Rosenberg v. Sanders, 253 Ariz. 279, 283–84 ¶¶ 20–32 (App. 

2022). But the court went on to determine that “our de novo review of this 

record reveals a ninth factor”—a “[s]tatements of [g]rantor” factor. Id.

at 284–85 ¶¶ 32–34 (noting “the McCauley factors are not exclusive”). The 

court explained that, because the trial court “focused on the McCauley

factors, [it] did not consider Brandt’s alleged statements from 2018, while 

hospitalized, fourteen months after he signed and recorded the 2017 deed.”
ROSENBERG V. SANDERS

Opinion of the Court

7 

Id. at 284 ¶ 33. When considered, the court believed “this evidence barely 

frames a material question of disputed fact” and thus “the record had just 

enough evidence to create a factual dispute and defeat summary 

judgment.” Id. at 284 ¶ 33, 285 ¶ 38. The court therefore reversed and 

remanded for trial. Id. at 286 ¶ 40. 

¶22 We granted review to determine whether a grantor’s 

post-execution statements should be added to the eight-factor McCauley

inquiry as a new ninth factor, an issue of statewide importance. This 

Court has jurisdiction under article 6, section 5(3) of the Arizona 

Constitution.

DISCUSSION

¶23 Under Arizona Rule of Civil Procedure 56(a), “[t]he court 

shall grant summary judgment if the moving party shows that there is no 

genuine dispute as to any material fact and the moving party is entitled to 

judgment as a matter of law.” Summary judgment must be granted where 

“the facts produced in support of the [non-movant’s] claim . . . have so little 

probative value, given the quantum of evidence required, that reasonable 

people could not agree with the conclusion advanced by the proponent of 

the claim.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). 

¶24 We review de novo a grant of summary judgment. Delgado 

v. Manor Care of Tucson AZ, LLC, 242 Ariz. 309, 312 ¶ 10 (2017). “Because 

the superior court granted summary judgment, we review the facts and 

reasonable inferences in the light most favorable to . . . the non-moving 

party.” Id. at 311 ¶ 2. 

A. Should This Court Add A Grantor’s Post-Execution 

Statements As A New Ninth Factor Under McCauley? 

¶25 Under Arizona law, “a person unduly influences a testat[or] 

in executing a will when that person through his power over the mind of 

the testat[or] makes the latter’s desires conform to his own, thereby 

overmastering the volition of testat[or].” McCauley, 101 Ariz. at 10 

(cleaned up). 

¶26 McCauley sets forth a non-exclusive eight-factor inquiry to 

determine when a testamentary document has been procured through
ROSENBERG V. SANDERS

Opinion of the Court

8

undue influence. Id. at 10–11. These eight factors that “have been treated 

as significant indicia of the presence or absence of such influence” are:

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 influence; and whether the testat[or] and the 

beneficiary have been in a confidential relationship.

 

Id. (cleaned up).

¶27 As a threshold matter, we must consider whether to add the 

post-execution statements of a grantor as a new ninth factor under 

McCauley. We decline to do so. The post-execution statements of a 

grantor are more properly characterized as a type of evidence that may 

support one of the existing eight McCauley factors. For example, if a 

grantor’s post-execution statement is relevant and admissible under the 

Arizona Rules of Evidence, it may support the alleged influencer’s 

fraudulent representations to the grantor (first McCauley factor), the alleged 

influencer’s active participation in securing the drafting and execution of 

the document (fourth McCauley factor), the consistency or inconsistency of 

the document with the grantor’s other declarations and plannings (fifth 

McCauley factor), or the grantor’s susceptibility to undue influence (seventh 

McCauley factor). Thus, we conclude that adding post-execution

statements to the McCauley inquiry as a new stand-alone factor is 

unnecessary.

¶28 This, however, does not result in a per se exclusion of all

evidence of a grantor’s post-execution statements. Courts may consider 

all evidence that is admissible and relevant to a claim of undue influence. 

See Ariz. R. Evid. 401, 402.
ROSENBERG V. SANDERS

Opinion of the Court

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¶29 “Evidence is relevant if: (a) it has any tendency to make a fact 

more or less probable than it would be without the evidence; and (b) the 

fact is of consequence in determining the action.” Ariz. R. Evid. 401. On 

the issue of relevance in the context of an undue influence claim, In re 

O’Connor’s Estate is instructive:

We said in In re Greene’s Estate, . . . ‘Evidence as to mental 

condition before or after the execution of the will is important 

only in so far as it tends to show mental condition at the time 

of the execution of the will.’ 

. . . . 

[W]e are concerned here with the actual mental condition of 

the testatrix . . . at the time of the execution of the will in question, 

at which time all witnesses present testified that she was calm, 

composed and knew what she was doing. We are concerned 

with evidence of her mental condition before and after that 

time only insofar as it tends to show her mental condition at 

the time she executed the will. 

74 Ariz. 248, 257–58 (1952) (emphasis added); see also id. at 260–61 

(concluding that the evidence of O’Connor’s condition when she executed 

the will did not support the jury’s finding of undue influence).

¶30 In addition, In re Harber’s Estate provides guidance:

Although the evidence shows that Mrs. Harber had extensive 

hospitalization toward the end of her life, there is no 

indication she was in a physical or mental condition which 

rendered her susceptible to the exertion of undue influence 

upon her at the time of the execution of her will. It is necessary

for the contestants to introduce sufficient evidence to show 

that the testatrix’ will was overpowered and the will of 

another substituted in its stead, in order for a jury to find that 

the will was a product of undue influence.

102 Ariz. 285, 291–92 (1967) (emphasis added); see also In re Vermeersch’s 

Estate, 109 Ariz. 125, 127 (1973) (“This court . . . is not concerned with a 

generally deteriorated mental condition; the law is concerned only with the 

state of the testat[or’s] mind at the time of the execution of the will.” (emphasis 
ROSENBERG V. SANDERS

Opinion of the Court

10 

added)). Arizona law “is very clear that attention must be directed to the 

situation at the time the will is executed in preference to some previous 

time.” Parrisella v. Fotopulos, 111 Ariz. 4, 7–8 (1974) (concluding the 

contestants did not establish this requirement that undue influence was 

“present [a]t the time of the execution of the will”). 

¶31 Accordingly, a grantor’s post-execution statement is relevant

to an undue influence claim if it addresses the grantor’s state of mind or

mental condition, or the circumstances present, at the time of the execution

of the document. This includes whether the post-execution statement was 

consistent or inconsistent with the executed document, which is the fifth 

McCauley factor. See McCauley, 101 Ariz. at 11, 15 (concluding the will was 

“entirely inconsistent with decedent’s oft-repeated purpose to exclude” her

former and current husbands from sharing the property). Indeed, this is

consistent with the Court’s long-standing assessment of how 

post-execution statements evidence the testator’s state of mind at the time 

of execution. See In re Vermeersch’s Estate, 109 Ariz. at 129 (relying on a 

testator’s “declarations made to the nurse at the rest home months after the 

will was executed,” as the will “was absolutely consistent with [these] 

declarations”); In re Harber’s Estate, 102 Ariz. at 291–92 (concluding that 

evidence of testator’s hospitalization and doctor’s comment about her 

deteriorating health did not support undue influence because it only spoke 

to her susceptibility after she executed her will, not “at the time of the 

execution of her will”); In re O’Connor’s Estate, 74 Ariz. at 261 (concluding 

there is no evidence of undue influence where “the many repetitions of 

deceased to different people of her intent to dispose of the property as she 

did in the will . . . shows a permanent fixed mind to carry out [her] plan”); 

In re Westfall’s Estate, 74 Ariz. 181, 184 (considering evidence that two 

witnesses, who saw testatrix and had a conversation with her “at the 

signing of the will and not in excess of 40 minutes,” testified “that she was 

competent”); see also In re Frick’s Estate, 13 Ariz. App. 247, 248, 252–53 (1970) 

(considering, as part of the McCauley inquiry, testator’s statements made in 

letter dated about one month after execution of will).
ROSENBERG V. SANDERS

Opinion of the Court

11

B. Are Brandt’s Alleged Post-Execution Statements 

Relevant?

¶32 We now consider whether Brandt’s alleged post-execution 

statements in the hospital in June 2018 are relevant to Rosenberg’s undue 

influence claim.

¶33 As an initial matter, we disagree with the court of appeals that

before granting summary judgment, the trial court “did not consider 

Brandt’s alleged statements from 2018, while hospitalized, fourteen months 

after he signed and recorded the 2017 deed.” Rosenberg, 253 Ariz. at 284

¶ 33. The trial court explained in its order that it had “reviewed and 

considered” Sanders’ motion for summary judgment, Rosenberg’s

response, Sanders’ reply, the parties’ respective statements of fact, the 

arguments made by counsel at oral argument, and “the record in this 

matter” before ruling on the motion. We observe that Rosenberg’s 

response, statement of facts, and declaration all discussed Brandt’s alleged 

statements in the hospital in June 2018. Thus, the record demonstrates 

that the trial court in fact considered Brandt’s alleged post-execution 

statements, even though it did not specifically address them, before 

granting Sanders’ summary judgment motion. See Fuentes v. Fuentes, 209 

Ariz. 51, 55–56 ¶ 18 (App. 2004) (“Although the trial court’s signed minute 

entry does not specifically detail [the husband’s] financial situation, the 

foregoing evidence is presumed to have been fully considered by the court 

prior to issuing its decision.”).

¶34 Here, Brandt’s alleged post-execution statements in the 

hospital were made fourteen months after he executed the 2017 deed. 

They did not reference his state of mind, his mental condition, or the 

circumstances present when he executed the 2017 deed, nor did they 

reference how he planned to distribute the Properties. Instead, the alleged

statements only speak to Brandt’s then-current state of mind and mental 

condition at the time of his hospitalization in June 2018—specifically, that 

he was afraid of Sanders and no longer trusted her. While such statements 

may demonstrate his feelings toward Sanders in June 2018, they do not 

address his state of mind, his mental condition, or the circumstances 
ROSENBERG V. SANDERS

Opinion of the Court

12 

present “at the time of the execution of” the 2017 deed. 2 See In re 

O’Connor’s Estate, 74 Ariz. at 257–58; In re Harber’s Estate, 102 Ariz. at 291–

92; In re Vermeersch’s Estate, 109 Ariz. at 127; Parrisella, 111 Ariz. at 7. 

¶35 Brandt’s alleged post-execution statements in the hospital are 

not relevant to whether Sanders exerted undue influence upon Brandt

when he executed the 2017 deed or whether that deed was the product of 

undue influence. The post-execution statements are therefore 

inadmissible. See Ariz. R. Evid. 402. For that reason, we need not 

address the parties’ arguments about whether the post-execution 

statements are inadmissible hearsay.

C. Did The Trial Court Err In Granting Summary Judgment

In Favor Of Sanders? 

¶36 Finally, we turn to whether the trial court erred in granting

summary judgment for Sanders. 

¶37 Arizona law presumes that a person who executed a deed did 

so free from undue influence. See A.R.S. § 14-2712(B) (“It is a rebuttable 

presumption that a person who executes a governing instrument is 

presumed to have capacity to execute the governing instrument and to have 

done so free from undue influence and duress.”); A.R.S. § 14-1201(28) 

(defining “governing instrument” to include a “deed”). A party 

challenging the validity of a deed has the burden of establishing its 

invalidity by a preponderance of the evidence. See A.R.S. § 14-2712(D). 

¶38 Arizona law provides, however, that an inverse presumption 

arises that a deed was the product of undue influence if the alleged 

influencer either (1) had a confidential relationship with the decedent, was 

active in procuring the creation and execution of the deed, and is a principal 

beneficiary of the deed, or (2) prepared the deed and is a principal 

2 We do not place a specific timeframe on the relevance of post-execution 

statements for undue influence claims. We cannot state, as a matter of law, 

that a relevant statement transforms into one that is irrelevant in all 

instances after a specific amount of time has passed between a document’s

execution and a post-execution statement. In each case, the trial court 

must determine the relevance and admissibility of each alleged 

post-execution statement under the Arizona Rules of Evidence.
ROSENBERG V. SANDERS

Opinion of the Court

13 

beneficiary of the deed. See A.R.S. § 14-2712(E)(1)–(2). Here, Sanders 

produced evidence that Brandt gave the 2017 deed to her two months after 

its execution as a birthday gift, and she did not previously know he had 

signed the deed. Rosenberg did not produce any evidence to contradict 

these points. Further, Rosenberg did not produce any evidence that 

Sanders prepared the 2017 deed, or actively participated in procuring its 

creation and execution. Based on this lack of evidence, Rosenberg has 

failed to establish the factors under § 14-2712(E)(1)–(2). Therefore, the

inverse presumption does not apply for the benefit of Rosenberg. 

¶39 In our de novo review of the grant of summary judgment, we 

conclude that Rosenberg did not produce evidence creating a genuine 

dispute as to any material fact on the first six McCauley factors. 

(1) Did Sanders make fraudulent representations to Brandt? 

Rosenberg did not produce evidence that Sanders made 

fraudulent representations to Brandt through which she

“attempted to obtain control over [Brandt] and to alienate 

[him from his] family . . . in order to supplant [his] 

confidence in these people and promote [her] own 

advantage.” McCauley, 101 Ariz. at 13. Rosenberg did not 

create a genuine dispute as to any material fact on this factor. 

(2) Was the 2017 deed’s execution the product of hasty action? 

Rosenberg did not present evidence that Brandt’s execution 

of the 2017 deed was hasty. Instead, Brandt executed it two 

months before presenting it to Sanders as a birthday gift. 

See McCauley, 101 Ariz. at 14 (determining that action was 

“hasty” where decedent called an attorney “from the 

hospital shortly before the will was signed and asked him to 

draw a will” and “[t]he execution was accomplished . . . in 

approximately ten minutes” at the hospital).

(3) Was the execution of the 2017 deed concealed from others? 

Rosenberg claims that Brandt’s family did not know about 

the 2017 deed. But the 2017 deed was a public record,

Brandt did not traditionally discuss his financial affairs with 

Rosenberg, she did not ask Brandt what he had done with 
ROSENBERG V. SANDERS

Opinion of the Court

14 

the deed, and Rosenberg did not demonstrate that his silence 

with relatives on such a financial matter was unusual. 

(4) Was Sanders active in securing the drafting and execution of 

the 2017 deed? Rosenberg did not present evidence that 

Sanders was active in the drafting or execution of the 2017 

deed, and as discussed, any inferences she offers do not 

create a genuine dispute as to any material fact. Section C,

¶¶ 45-50. 

(5) Was the 2017 deed as drawn consistent or inconsistent with 

prior declarations and plannings of Brandt? The 2017 deed 

was consistent with Brandt’s practice of leaving his 

properties to female companions. Rosenberg did not 

present evidence that the 2017 deed as drawn was

inconsistent with Brandt’s prior declarations or plannings. 

(6) Was the 2017 deed unnatural in view of Brandt’s 

circumstances, attitudes, and family? The 2017 deed was 

reasonable in view of Brandt’s circumstances, attitudes, and 

values. The 2017 deed continued Brandt’s practice of 

granting an interest in his properties to female companions 

when he had such companions in his life. 

See generally McCauley, 101 Ariz. at 10–11, 13–16 (discussing the evidence 

presented). 

¶40 As to the seventh McCauley factor, we acknowledge that the

parties presented conflicting evidence about Brandt’s susceptibility to 

undue influence when he executed the 2017 deed. This evidence includes 

medical records. In addition, Rosenberg presented an expert opinion that 

Brandt was susceptible to undue influence in April 2017, although Sanders 

presented an expert opinion that Brandt was not susceptible to undue 

influence at that time.

¶41 As to the eighth McCauley factor, the parties agree that 

Sanders and Brandt were in a confidential relationship. Rosenberg has 

established this factor. 
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Opinion of the Court

15 

¶42 The focus here, as with all claims of undue influence, is 

whether Sanders “through [her] power over the mind of [Brandt] ma[de] 

the latter’s desires conform to [Sanders’] own, thereby overmastering the 

volition of [Brandt].” See id. at 10. Although none of the McCauley

“factors standing alone or even in combination with some others, may be 

sufficient to sustain a finding of undue influence, the force of the 

combination of all these factors may be sufficient to raise a question of fact 

as to the existence of undue influence.” Id. at 11. 

¶43 We recognize that undue influence may be established by 

circumstantial evidence. Id. at 10. However, to establish an undue 

influence claim, “[m]ore must be proved than mere opportunity and 

motive.” In re Silva’s Estate, 105 Ariz. 243, 246 (1969). On this point, our 

case law provides guidance. In one case, this Court determined that an 

alleged influencer’s (1) confidential relationship with decedent, (2) activity 

in preparing the wills, and (3) status as principal beneficiary were 

insufficient to sustain a finding of undue influence. In re Pitt’s Estate, 88 

Ariz. 312, 316–18 (1960). In another case, this Court held the “fact that [the 

beneficiary] had the opportunity to exercise such influence over deceased 

is not sufficient to establish undue influence and to invalidate a will.” In 

re O’Connor’s Estate, 74 Ariz. at 260. 

¶44 Here, Rosenberg’s evidence of susceptibility and the existence 

of a close relationship under the seventh and eighth McCauley factors are 

insufficient to defeat summary judgment. See In re Estate of Sidransky, 420 

S.W.3d 90, 98 (Tex. App. 2012) (“Even in light of [a medical expert’s] 

affidavit, Sidransky’s weakened physical and mental condition only 

indicates her susceptibility to influence; it is no evidence that such influence 

existed in fact.”); Matter of Estate of Brosius, 683 P.2d 663, 666 (Wyo. 1984) 

(concluding that evidence of susceptibility and opportunity and status as 

beneficiary “is wholly immaterial . . . unless it can be tied to evidence that 

[appellee] actually exerted control over the testator so as to make the 1976 

instrument her will rather than his”); Golladay v. Golladay, 287 S.W.2d 904, 

906 (Ky. 1955) (“Mere opportunity of the wife, even though coupled, as 

here, with an aged and physically weak condition of the testator, is not 

sufficient to establish undue influence.”). Rosenberg’s evidence does not 

amount to “evidence from which a reasonable person could conclude that 

[Sanders] had a disposition to exercise such influence, that [she] had an 

opportunity to exercise undue influence, that some influence was exerted, 
ROSENBERG V. SANDERS

Opinion of the Court

16 

and that the [2017 deed] seems to result from such influence.” See 

McCauley, 101 Ariz. at 11. 

¶45 Rosenberg claims that summary judgment is improper 

because Brandt’s alleged post-execution statements are “inconsistent” with 

Sanders’ story (noting McCauley’s fifth factor) and thereby raise 

“inferences” of undue influence that the trier of fact must resolve. For 

example, Rosenberg argues that Brandt’s failure to mention the 2017 deed 

to Rosenberg or Susan, in combination with his alleged post-execution 

statements, raises an inference that Brandt did not voluntarily sign the 

deed.

¶46 Further, Rosenberg contends that Brandt “was in no 

condition” to drive after his hospital discharge on March 11, 2017, noting

the medical issues documented in his discharge summary. Therefore, 

Rosenberg claims that his post-execution statements raise an inference that 

Sanders drove Brandt to sign and record the deed in April 2017, and this is 

inconsistent with her claim that she did not know about the 2017 deed until 

two months after its execution.

¶47 As to the claimed inconsistencies, we note that McCauley’s 

fifth factor addresses “whether the will as drawn was consistent or 

inconsistent with prior declarations and plannings” of the testator. 101 

Ariz. at 11. In McCauley, the “pattern of distribution” in the will was 

“entirely inconsistent with decedent’s oft-repeated purpose to exclude 

husbands—including proponent—from sharing in her property.” Id.

at 15. But here, the 2017 deed was not inconsistent with Brandt’s alleged 

statements in the hospital. None of the alleged declarations addressed his 

state of mind, his mental condition, or the circumstances present at the time 

of the execution of the 2017 deed fourteen months earlier, nor did they 

reference how he planned to distribute the Properties. 

¶48 Moreover, Sanders’ claims do not raise inferences of undue 

influence that create a genuine dispute as to any material fact. First, the 

evidence shows that Brandt did not discuss his financial affairs with 

Rosenberg (except when he named her on the 2005 deed), and Rosenberg 

did not produce evidence that she asked Brandt what he had done with the 

deed or that his silence with relatives on such a financial matter was 

unusual.
ROSENBERG V. SANDERS

Opinion of the Court

17 

¶49 Second, Sanders testified that Brandt drove himself to get the 

2017 deed signed and notarized on April 6, 2017. Although Rosenberg

generally claimed that Brandt “was in no condition” to drive after his 

hospital discharge on March 11, 2017, Brandt signed the 2017 deed nearly 

one month after his discharge. In addition, Rosenberg did not visit or 

personally observe Brandt in March or April 2017; she did not visit Brandt 

until October 2017. Further, Rosenberg acknowledged that Brandt was 

driving himself very short distances in early 2017. 

¶50 Third, as discussed, Brandt’s alleged post-execution 

statements only speak to his state of mind and mental condition in June 

2018 and are unrelated to the circumstances present when he signed the 

2017 deed, making his statements irrelevant to the claim here. As stated 

in In re Harber’s Estate, “[i]n the absence of sufficient evidence upon which 

reasonable [persons] could draw an inference that undue influence had 

been exerted . . . and that the will was a product of that influence the case 

should not go to a jury. Mere suspicion, innuendo, insinuation and 

speculation are no substitute for evidence.” 102 Ariz. at 294. 

Rosenberg’s inferences do not create a genuine dispute of material fact 

concerning whether Sanders exerted undue influence at the time of 

execution, or whether the 2017 deed was the product of Sanders’ undue 

influence.

¶51 Finally, in arguing that summary judgment was improper, 

Rosenberg points to one additional alleged post-execution statement after 

Brandt was discharged from the hospital in June 2018. Rosenberg’s 

declaration asserts that when Susan stayed in Arizona to help care for

Brandt, “Susan asked Alex whether he had given his home to [Sanders]. 

He flatly denied that he had done that.” Rosenberg claims that this 

statement demonstrates that Brandt “never intended to give his properties 

to Marilyn, by way of beneficiary deed or otherwise.”

¶52 As an initial matter, Rosenberg does not claim that she 

personally overheard this conversation between Susan and Brandt, nor did 

she produce testimony or a declaration directly from Susan concerning this 

alleged statement. See Ariz. R. Civ. P. 56(c)(5) (“An affidavit used to 

support or oppose a motion must be made on personal knowledge [and] set 

out facts that would be admissible in evidence.”). But even so, this alleged 
ROSENBERG V. SANDERS

Opinion of the Court

18 

statement is insufficient to defeat summary judgment. At most, it bears 

upon Brandt’s state of mind after he was discharged from the hospital in 

June 2018 that he had not “given his home” to Sanders. And in fact, Brandt 

was the current owner of his home at that time. See A.R.S. § 33-405(A) (“A 

deed that conveys an interest in real property . . . to a grantee beneficiary 

designated by the owner and that expressly states that the deed is effective 

on the death of the owner transfers the interest to the designated grantee 

beneficiary effective on the death of the owner . . . .”); A.R.S. 

§ 33-405(M)(1)–(2). The alleged statement does not create a genuine 

dispute of material fact that Sanders through her power over the mind of 

Brandt made his desires conform to her own, thereby overmastering the

volition of Brandt. See McCauley, 101 Ariz. at 10; see also In re Silva’s Estate, 

105 Ariz. at 246 (“When a decedent leaves a large estate to a stranger, 

ignoring close ties of blood, there are situations in which it may be inferred 

that the will was the result of undue influence. Here, such is not the 

case.”).

CONCLUSION

¶53 For the foregoing reasons, we vacate the court of appeals’ 

opinion although we approve much of its reasoning as to the eight

McCauley factors. We affirm the trial court’s grant of summary judgment 

in favor of Sanders.