This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 IN RE: ESTATE OF GILBERT 2 STEPHEN L. GILBERT, 3 Petitioner-Appellee, 4

v. NO. 34,568 5 ANDREW STANLEY BARA, 6 Respondent, 7 and 8 ELLEN HEINE, 9 Intervenor-Appellant. 10 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 11 Sarah M. Singleton, District Judge 12 The Simons Firm, LLP 13 Faith Leslie Kalman Reyes 14 Santa Fe, NM 15 for Appellee 16 John Ronald Boyd 17 Santa Fe, NM 182 for Andrew Stanley Bara 1 Ellen Heine 2 Wayne, NJ 3 Pro Se Intervenor-Appellant 4

MEMORANDUM OPINION 5 KENNEDY, Judge. 6 {1} Intervenor Ellen Heine (“Intervenor”) appeals the district court’s decision in 7 this probate case. We issued a notice of proposed disposition proposing to affirm. 8 Intervenor filed a memorandum in oppos ition and an amended memorandum in 9 opposition, challenging the proposed affirmance. We have carefully considered the 10 arguments raised in Intervenor’s submissions, but remain convinced that affirmance 11 is the correct result in this case. Therefore, for the reasons stated in the notice of 12 proposed summary disposition as well as in this opinion, we affirm the district court’s 13 decision. For ease of organization we will address the issues in the same order as they 14 were discussed in the notice, using th e same denomination of the issues and 15 addressing only the issues discussed in the memorandum in opposition. 16 {2} Issue 1a: Intervenor argues that Petitioner, Decedent’s son, did not have the 17 authority to challenge Decedent’s 2007 w ill because he was omitted from Decedent’s 183 prior 1994 will. In other words, if the 2007 will were to be invalidated, the 1994 will 1 would re-gain effect, and Petitioner would recover nothing from the estate because he 2 was omitted from the 1994 will. [Am. MIO 2] Intervenor cited a number of out-of3 state cases in support of this proposition. Ho wever, as we discussed in the notice of 4 proposed summary disposition, Petitioner di d not challenge only the 2007 will in this 5 case; he also challenged the 1994 will, clai ming it was a sham will designed to shelter 6 assets from his ex-wife. Thus, Petitioner wa s allowed to challenge both wills in the 7 same proceeding. Since, by invalidating both wills, Petitioner was able to inherit a 8 share of Decedent’s estate, he had standing to challenge the wills; as we stated in the 9 notice, an heir who would gain by intestacyhas standing to challenge a will. The fact 10 that Petitioner challenged both wills in th e same proceeding does not change the 11 standing analysis. 12 {3} Issue 1b: In this issue, Intervenor appearedto be substantively challenging the 13 district court’s decision to invalidate the 1994 will. We proposed to find that 14 Intervenor did not have standing to raise such a challenge, because she would stand 15 to gain nothing if the challenge was su ccessful—once the 2007 will was invalidated, 16 it would make no difference to Intervenor whether the 1994 will remained in effect 17 or the estate was distributed in intestacy, because in neither instance would Intervenor 184 receive any of the assets of the estate. Inresponse, Intervenor contends that issues 1 concerning the 1994 will can be brought in to the 2007 will contest for purposes of 2 “validation.” [Am. MIO 4] Intervenor does not explain what she means by 3 “validation,” or what is to be “validated .” We are therefore unable to understand this 4 argument and will not address it. See Headley v. Morgan Mgmt. Corp. , 2005-NMCA5 045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (observing that this Court will not review 6 unclear or undeveloped arguments, or guess at what a party’s arguments might be). 7 {4} Issue 1d: In our notice we construed this i ssue as a broad attack on the district 8 court’s findings and conclusions , and proposed to reject th is attack. We relied on the 9 principle that this court will not re-weigh the evidence on appeal, or substitute our 10 judgment for the district court’s when it comes to evaluating the credibility of 11 witnesses. See Jones v. Schoelkoppf , 2005-NMCA-124, ¶ 8, 138 N.M. 477, 122 P.3d 12 844; Chapman v. Varela , 2009-NMSC-041, ¶ 5, 146 N.M. 680, 213 P.3d 1109. In 13 response, Intervenor cites cases indicating that the evidence must be viewed as a 14 whole, as well as general principles of law applicable to undue-influence cases. [Am. 15 MIO 4] None of these cases convinces us to depart from the well-worn practice of 16 deferring to the district court’s determinations of issues of fact and credibility of 17 witnesses. 185 {5} Issue 2a: In the notice we stated Interve nor’s argument as one based on the 1 distinction between in rem proceedings and in personam proceedings, and we pointed 2 to a New Mexico statute allowing probate pr oceedings such as this one to be litigated 3 in this state, which appears to overridethe common law regarding in rem or in 4 personam status. Intervenor’s response ab andons the in rem/in personam argument 5 and points out that she also argued that the case should be litigat ed in New Jersey, 6 where Decedent owned a substantial amountof property and was domiciled for most 7 of his life. [Am. MIO 5] As we pointed out in the notice when discussing a different 8 issue, however, the New Jersey courts had already rejected the case, holding that the 9 probate proceeding should be litigated in New Mexico. [RP Vol. 3, 425-26] That 10 decision was not appealed and became bindi ng on the parties, and this argument is 11 therefore without merit. See Marchman v. NCNB Texas Nat’l Bank , 1995-NMSC-041, 12 ¶ 31, 120 N.M. 74, 898 P.2d 709 (discussing the fact that the doctrine of forum non 13 conveniens “presupposes the availability of another forum . . .”); In re: Estate of 14 Duran , 2007-NMCA-068, ¶ 15, 141 N.M. 793, 161 P.3d 290 (pointing out that a 15 judgment that is not appealed has res judicat a effect for purposes of any and all future 16 litigation between the same parties). 17 {6} Issue 2b: In this issue Intervenor challe nges the amount of the supersedeas 186 bond set by the district court. [Am. MIO 5] Si nce we are affirming the district court’s 1 decision and thereby terminating this appeal, this issue is moot. To the extent it may 2 not be moot, we again point out that we a ddressed this question in a previous order 3 and are not inclined to revisit that order. 4 {7} Issue 2c: Intervenor again argues that New Jersey was the proper forum for the 5 probate proceedings [Am. MIO 5]; for the reasons stated above in our discussion of 6 Issue 2a, we do not accept Intervenor’s arguments. 7 {8} Issue 2d: Intervenor challenges the district court’s decision refusing to allow 8 a number of witnesses to testify at trial becau se Intervenor did not disclose them in a 9 timely manner. We proposed to affirm the court’s decision, pointing out that the 10 pretrial order specifically states that onl y timely-disclosed witn esses will be allowed 11 to testify at trial [RP Vol. 5, 968], and that a decision to allow or disallow testimony 12 from a late-disclosed witness is di scretionary with the trial court. Montoya v. Super 13 Save Warehouse Foods , 1991-NMSC-003, ¶ 16, 111 N.M. 212, 804 P.2d 403. We 14 also pointed out that Intervenor’s list of late-disclosed witnesse s was five pages long, 15 and that it would have been impossible fo r Petitioner to prepare for their testimony 16 before trial. In response, Intervenor makes several arguments, none of which are 17 supported by cited authority. The lack of citation to legal authorityalone would be a 187 sufficient basis upon which to reject Intervenor’s arguments. See ITT Educ. Servs., 1 Inc. v. Taxation & Revenue Dep’t , 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 2 969. Nevertheless, we briefly discuss the merits of Intervenor’s arguments. 3 {9} Intervenor first contends that her latedisclosure of the witnesses should not 4 matter with respect to the beneficiaries under the 2007 will, because they were 5 interested parties in the litig ation and should have been allowed to testify on their own 6 behalf, not simply as Interve nor’s witnesses. [Am. MIO 5] The fact remains, 7 however, that these interested parties never intervened in the litigation despite being 8 served with many filed documents, and never e xpressed a desire to testify at the trial 9 until Intervenor named them as witnesse s in her late-filed list. The prejudice to 10 Petitioner from late disclosure of witnesses is just as great whether they intended to 11 testify on their own behalf or on behalf of a party to the litigation. Although we need 12 not address the issue, we have grave doubts about whether the interested parties would 13 have been allowed to intervene in the acti on to participate in the trial, after waiting 14 until the very last minute to ask for such intervention. See, e.g. , Nellis v. Mid-Century 15 Ins. Co. , 2007-NMCA-090, ¶¶ 7, 10-11, 142 N.M. 115, 163 P.3d 502 (finding no 16 abuse of discretion in denial of motion to intervene filed by party who had knowledge 17 of the lawsuit and did not attempt to intervene until sixteen months later). Suffice it 188 to say that we see no abuse of discretion on the part of the district court in excluding 1 their testimony. 2 {10} Intervenor also argues it was error to exclude the witnesses because Petitioner 3 was in possession of contact information for the witnesses prior to trial. [Am. MIO 6] 4 Having this information is not the same as having information indicating Intervenor 5 intended to have the witnesses testify attrial, and does not remedy the fact that 6 Intervenor had no reason to prepare to address their potential testimony at the trial. 7 This argument is therefore unconvincing. 8 {11} Intervenor finally argues that at minimum, Annmay Bara should have been 9 allowed to testify, as she is a named Respondent to the petition. [Am. MIO 6] 10 However, Ms. Bara was not named as a w itness in Respondent’s own witness list, 11 filed on November 6, 2014, a month before trial [RP Vol. 3, 587], which indicates she 12 did not intend to testify at the trial; we note that her co-Respondent, Mr. Bara, was 13 listed as a witness. [Id.] We are therefore of the opinion the district court did not abuse 14 its discretion by refusing to allow her to testify even though she was at least nominally 15 a party in the case. 16 {12} Issue 2e: Intervenor continues to argue that th e district court erred in appointing 17 Petitioner as Special Administrator of his father’s estate. [Am. MIO 6] In our notice 189 we discussed the reasons for the district court’s action, and in response Intervenor 1 merely argues contrary facts and contends that Petitioner harmed her while acting as 2 Special Administrator, by filing legal ac tions against her. [Id.] These arguments 3 essentially ask us to substitute our judgment for the district court, as to whether a 4 Special Administrator was needed for the es tate and as to whether Petitioner would 5 be an appropriate choice for that position. On appeal we will not interfere with 6 judgment calls such as these. See, e.g. , Matter of Estate of Boyer , 1994-NMCA-005, 7 ¶ 30, 117 N.M. 74, 868 P.2d 1299 (stating th at an order removing a personal 8 representative is reviewed under anabuse-of-discretion standard). 9 {13} Issue 2f: For the third time in the amended memorandum in opposition, 10 Intervenor contends the probate matter shoul d have been heard in New Jersey rather 11 than New Mexico. [Am. MIO 7] We have already pointed out that the New Jersey 12 court refused to hear the matter; that is a sufficient answer to Intervenor’s contention. 13 In addition, without citation to authority, Intervenor appears to argue that New Jersey 14 law regarding the proper location to bring a probate action is different than New 15 Mexico law, in that New Jersey purporte dly “recognizes” a decedent’s residence for 16 that purpose, while New Mexico “allows” th e probate action to be brought where the 17 decedent owned property. [Id.] Intervenor also suggests that Decedent was domiciled 1810 in New Jersey rather than New Mexico, without explaining the significance of that 1 assertion. [Id.] All of these assertions appear to raise potentially complicated questions 2 of fact and law, regarding the law of domicile of an incapacitated person who has a 3 court-appointed guardian, possible differences in New Jersey and New Mexico 4 probate law, and even the questi on of what to do if, as Intervenor appears to argue, the 5 only state that has authority to host the pr obate proceeding has declined to do so. Yet, 6 as pointed out above, Intervenor has comple tely failed to cite any legal authority in 7 support of her assertions, or to develop her arguments in any manner. We therefore 8 decline to address any potential legal issue that might be presented in this issue. See 9 ITT Educ. Servs., Inc. , 1998-NMCA-078, ¶ 10; Greentree Solid Waste Auth. v. Cty. 10 of Lincoln , 2016-NMCA-005, ¶ 27, 365 P.3d 509 (d eclining to consider arguments 11 undeveloped by the appellant). We do note that Intervenor’s domicile argument is 12 directly contrary to the New Jersey court’s determination of that issue, in that the court 13 specifically decided that D ecedent was domiciled in New Me xico, not simply residing 14 here, and Intervenor’s argument therefore has no factual basis. [RP Vol. 3, 425-26] 15

{14} Issue 2g: This issue concerns the district court’s denial of Intervenor’s request 16 for a jury trial. Intervenor does not contes t the assertion in our notice that the request 1711 was untimely; she does argue that the distri ct court could have allowed a six-person 1 jury rather than a twelve-p erson jury. [Am. MIO 7] As we pointed out in the notice, 2 a decision to deny an untimely request for a jury trial is reviewed only for an abuse 3 of the district court’s discretion, Aspen Landscaping, Inc. v. Longford Homes of New 4 Mexico , 2004-NMCA-063, ¶ 11, 135 N.M. 607, 92 P. 3d 53, and we see no such abuse 5 here; although the district court could havegranted the request for a jury, for the 6 reasons stated in the notice and in the district court’s order, it was not an abuse of 7 discretion for the court to fail to do so. 8 {15} Issue 2h: Intervenor states that certain facts established by res judicata and 9 documentary evidence will be discussed withrespect to Issue 5c. [Am. MIO 8] We 10 will defer discussion of these unspecified issues. 11 {16} Issue 3a: In this issue Intervenor challenged the district court’s finding that she 12 and Respondent Andrew Bara were in confidential relati onships with Decedent. We 13 proposed to affirm that finding, citing to a case indicating that close friends can be in 14 a confidential relationship with each other. See In re: Estate of Gersbach , 1998- 15 NMSC-013, ¶ 12, 125 N.M. 269, 960 P.2d 811. In response, Intervenor again argues 16 that there are differences between relations hips that professionals have with their 17 clients and relationships that friends havewith each other. [Am. MIO 8] While that 1812 is true, it does not negate the possibility that friends may be found to be in a 1 confidential relationship. 2 {17} Issue 3b: Discussion of this issue is deferred to the discussion of Issue 5c. 3 {18} Issue 4: Intervenor challenged the districtcourt’s decision invalidating the 1994 4 will as a sham. We proposed to hold that Intervenor, who was not named as a 5 beneficiary of the 1994 will and was not c onnected to it in any way, did not have 6 standing to challenge the invalidation of th e 1994 will. In response, Intervenor points 7 out that she was allowed to participate inthis case, that Petitioner is the one who 8 raised the question of invalidation of the 1994 will, and that Intervenor should be 9 allowed to respond to the arguments made by Petitioner. [Am. MIO 9] Again, 10 Intervenor cites no authority for the proposition she is stating, which appears to be that 11 a party allowed to participate in a legal proceeding has standing to challenge any and 12 all decisions made during that proceeding. We do not believe this is a correct 13 statement of the law; only decisions that impact a party’s legal interests are subject to 14 challenge by that party. Furthermore, as we have already discussed above, we are not 15 convinced by Intervenor’s argument that if Petitioner had not been allowed to 16 challenge the 1994 will, he would not havehad standing to challenge the 2007 will, 17 leaving that will intact to Intervenor’s bene fit. We reiterate that there is no reason a 1813 petitioner should not be allowed to challenge two wills at the same time if there are 1 legal or factual grounds upon which to do so. 2 {19} In an abundance of caution, however, wewill assume Intervenor has standing 3 to raise issues concerning the invalidati on of the 1994 will. Nevertheless, we affirm 4 the district court’s decision on its merits . The district court pointed to undisputed 5 evidence indicating that the 1994 will, omitti ng Petitioner as an heir, was a sham will 6 designed to shield his potential interest in Decedent’s estate from his ex-wife. [RP 7 Vol. 6, 1189] The district court therefore held that the 1994 will was not supported by 8 testamentary intent. See Matter of Estate of Martinez , 1983-NMCA-050, ¶ 10, 99 9 N.M. 809, 664 P.2d 1007 (discussing New Mexico law to the effect that testamentary 10 intent is an essential requisite of every will). Rather than challenging the evidence 11 relied on by the district court, Intervenor’s docketing statement complained about the 12 procedure—she pointed out that Petitioner never filed a pleading challenging the 1994 13 will, but was allowed to raise such a challenge at the trial. It is ax iomatic that a district 14 court has discretion to allow pleadings to be amended, ev en at trial or afterward. See, 15 e.g. , Schmitz v. Smentowski , 1990-NMSC-002, ¶ 14, 109 N.M. 386, 785 P.2d 726. 16 Since the only argument Intervenor made in the docketing statement was a challenge 17 to the fact that Petitioner never filed a fo rmal pleading requesting invalidation of the 1814 1994 will, we affirm the district court on this issue. 1 {20} Issue 5a: Intervenor originally claimed that Dr. Cave’s testimony violated the 2 Americans with Disabilities Act (“ADA”). We proposed to reject this contention. In 3 response, Intervenor states that Dr. Cav e’s “testimony and speculative claims offend 4 individuals with disabilities.” [Am. MIO 9] This is not a legal basis for reversal. 5 {21} Issue 5b: This issue is an attack on Dr. Cave’s testimony. In our notice we 6 discussed the fact that admission of expert testimony is within the trial court’s 7 discretion, and that any doubts about the admission of such testimony should be 8 resolved in favor of admitting the evidence. Loper v. JMAR , 2013-NMCA-098, ¶ 18, 9 311 P.3d 1184. We also pointed out that In tervenor’s attacks on Dr. Cave’s testimony 10 concerned the weight to be given such te stimony, rather than its admission, and that 11 any weaknesses in such testimony should have been fodder for cross-examination 12 rather than a reason to exclude the testimony. Lee v. Martinez , 2004-NMSC-027, ¶ 48, 13 136 N.M. 166, 96 P.3d 291. In response, Intervenor briefly argues that Dr. Cave’s 14 testimony should have been stricken b ecause she erroneously failed to equate 15 competence to participate in a legal proceeding with comp etence to make a will. [Am. 16 MIO 9] This was a matter for cross-examination, rather than a reason to exclude the 17 evidence entirely, and we find no abuse of di scretion on the part of the district court 1815 here. 1 {22} Issue 5c: This issue is the heart of Interven or’s appeal, as she challenges the 2 merits of the district court’s decision to invalidate the 2007 will. In our notice we 3 discussed both grounds relied on by the district court---Decedent’s lack of 4 testamentary capacity at the time the will was executed, and undue influence by 5 Intervenor and Respondent Andrew Bara. In this opinion we address only the former, 6 as it is sufficient to uphold the district court’s decision. Our notice discussed in detail 7 the law pertaining to testamentary capac ity, including the three-pronged inquiry 8 applicable to such a determination, as we ll as the evidence presented to the district 9 court that satisfied all three prongs. See In re Estate of Kimble , 1994-NMCA-028, ¶ 10 18, 117 N.M. 258, 871 P.2d 22. We also rec ognized that evidence contrary to the 11 district court’s determination was presente d, but noted that we are bound to view the 12 evidence in the light most favorable to the district court’s decision and to disregard 13 evidence that conflicts with that decision. Jones , 2005-NMCA-124, ¶ 8. In response, 14 Intervenor contends this case should be placed on the general calendar so that a 15 transcript of the trial may be reviewed; claims the district court made factual 16 statements that were not true; and argues the evidence presented by Petitioner that was 17 allegedly incorrect should be rebuttable on appeal. [Am. MIO 10-12] We are not 1816 persuaded. First, the docketing statement, record proper, and memorandum in 1 opposition can be an adequate substitute fo r a transcript on the summary calendar, 2 State v. Ibarra , 1993-NMCA-040, ¶¶ 9-11, 116 N.M. 486, 864 P.2d 302, and 3 Intervenor has supplied no special reason w hy that should be diff erent in this case. 4 Second, Intervenor’s claim that the evid ence presented by Petitioner, and relied on by 5 the district court, was false runs counter to our standard of review on appeal, already 6 set out above. It is not true that such evidence is “rebuttable” on appeal by other 7 evidence; indeed, the opposite is true. We are required to cred it evidence that was 8 relied on by the district court. Jones , 2005-NMCA-124, ¶ 8. We therefore affirm on 9 this issue. 10 {23} For the reasons discussed in the notice of proposed disposition and this opinion, 11 we affirm. 12 {24} IT IS SO ORDERED. 13

_______________________________ 14 RODERICK T. KENNEDY, Judge 15 WE CONCUR: 16

___________________________________ 17 MICHAEL D. BUSTAMANTE, Judge 1817 ___________________________________ 1 TIMOTHY L. GARCIA, Judge 2