1

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
2

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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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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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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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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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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(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
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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
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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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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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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 thenexisting 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,
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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
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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
12

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
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

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
14

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
15

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
16

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
17

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.
18

{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
19

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 longstanding 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
20

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

___________________________________
21

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