NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

IN THE MATTER OF THE ESTATE OF:

RICHARD STEPHEN LEE, Deceased.

__________________________________

ANISSA GUTIERREZ, Petitioner/Appellant,

v.

STEPHANIE LEE, Respondent/Appellee.

__________________________________

No. 1 CA-CV 23-0337 

Appeal from the Superior Court in Maricopa County

Nos. PB2022-050019

 PB2022-070006

The Honorable Sarah Selzer, Judge Pro Tempore

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Radix Law, Scottsdale, AZ

By C. Adam Buck

Counsel for Petitioner/Appellant

Stephanie Lee, Ridgeland, WI

Respondent/Appellee

FILED 08-29-2024
IN RE RICHARD L.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in 

which Judge Michael S. Catlett and Judge James B. Morse Jr. joined.

P A T O N, Judge:

¶1 Anissa Gutierrez appeals the superior court’s ruling that the 

document at issue is an invalid will. For the following reasons, we affirm 

in part but vacate and remand in part for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 Richard Stephen Lee died on January 1, 2022. Days after his 

death, his adult daughter, Stephanie Lee, was appointed his personal 

representative after filing an application for informal appointment. 

Gutierrez—Richard’s former girlfriend’s daughter—filed a separate 

petition asking the court to remove Lee as Richard’s personal representative 

and appoint Gutierrez instead. The superior court consolidated the 

matters.

¶3 Gutierrez submitted a document she claimed was Richard’s 

valid will (“the Document”). The Document is entirely handwritten. It is 

dated January 21, 2021, and titled “LAST WILL and TESTAMENT of 

RICHARD STEPHEN LEE.” The Document names Gutierrez as executor, 

makes specific devises to Gutierrez and her younger brother and cousin, 

makes funerary requests, and contains a residuary clause benefitting Lee’s 

daughter and Richard’s granddaughter, Sophia. The end of the Document 

contains text stating what appears to be “SIGH” or “SIGN” that is crossed 

out with “RICHARD STEPHEN LEE” handwritten in block-letter print next 

to it. Immediately below “RICHARD STEPHEN LEE” is a cursive 

signature, followed by the handwritten word, “WITNESS” listed twice, 

with four spaces in between. Along with the Document, Gutierrez 

submitted several examples of Richard’s writing and signature.

¶4 Lee argued the Document was invalid because the signature 

was forged. Gutierrez maintained the Document was Richard’s validly 

executed last will. The superior court set an evidentiary hearing for 

February, with an exhibit submittal deadline of February 3rd. Gutierrez 

and Lee each hired handwriting analysts who analyzed the Document, 
IN RE RICHARD L.

Decision of the Court

3

prepared reports, and testified regarding their findings at the hearing. Lee 

did not submit her handwriting analyst’s report before the deadline. At 

Lee’s request, the hearing was continued to April.

¶5 Gutierrez and her 16-year-old brother testified at the hearing. 

Gutierrez’s brother said he observed Richard reviewing the written

Document one day after school. He said Richard told him that he wanted 

to keep the will “a secret” but because Gutierrez’s brother saw the 

Document, Richard said he would tell him what it was—a will leaving the 

brother Richard’s “mechanical possessions” and motorcycles and house to 

Gutierrez. Gutierrez’s brother testified Richard then signed the Document 

in front of him. 

¶6 Gutierrez testified that on that same afternoon, Richard told 

her he “want[ed] to go over a few things with [her],” specifically, that he 

“need[ed] to write a will” in which he would leave his property to her, and 

her brother and cousin. She responded, “why me[,]” to which Richard said, 

she was like a daughter to him, he loved her, and wanted her “to be well 

off” and “taken care of” after he died. Gutierrez testified Richard told her 

he would put his will in the safe and gave her the safe code, but she forgot 

the code and ultimately had to hire a locksmith to retrieve the Document 

after he passed away.

¶7 Gutierrez’s analyst, a Department of Public Safety forensic 

scientist, testified he believed Richard made the cursive signature. The 

court admitted his report into evidence. Lee presented competing 

testimony from her handwriting analyst, a forensic document examiner,

who believed the cursive signature was not Richard’s because it contained 

a “pen lift” that the other sample signatures did not have. Both experts 

testified that they believed the remaining text in the Document was 

handwritten by Richard. Lee attempted to admit her expert’s report into

evidence, but Gutierrez objected to its admission on untimeliness grounds; 

the court agreed and did not admit it.

¶8 In the court’s ruling on whether the Document was Richard’s 

valid will, it noted the parties agreed that the text of the Document was 

written by Richard, and their only dispute was whether he signed the 

Document. The court found Lee’s analyst to be more persuasive than 

Gutierrez’s, noted it did not find Gutierrez’s and her brother’s testimony 

regarding the Document and their conversations with Richard about it to 

be credible, and concluded “the signature on the Document was not written 

by [Richard],” he therefore died intestate, and appointed Lee as his personal 

representative.
IN RE RICHARD L.

Decision of the Court

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¶9 Gutierrez timely appealed the superior court’s judgment. We 

have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) Sections 

12-120.21(A)(1), -2101(A)(1). 

DISCUSSION

¶10 Gutierrez argues that (1) the superior court erred by 

considering Lee’s handwriting analyst’s report, which was not admitted 

into evidence; (2) the superior court’s finding that the cursive signature was 

not Richard’s was unsupported by the “overwhelming” weight of the 

evidence; and (3) Richard’s handwritten block-letter name at the end of the 

Document satisfies the signature requirement for a holographic will, even 

if the cursive signature was not his.

¶11 We note at the outset that Gutierrez asks us to reverse the 

superior court’s decision because Lee filed a deficient answering brief—

both because Lee did not comply with the court’s prior order to file 

certificates of service and compliance and because the answering brief does 

not provide record cites or case law as required by Arizona Rule of Civil 

Appellate Procedure (“ARCAP”) 13 and 14. Gutierrez is correct that Lee’s 

first answering brief did not include certificates of compliance and service. 

We ordered Lee to file the certificates, and noted that failure to comply may 

result in sanctions, including striking her answering brief. Lee filed a 

duplicate answering brief, along with a picture of a sentence from the 

certificate of compliance. We struck the duplicate answering brief and 

forwarded the first answering brief to Gutierrez.

¶12 Gutierrez is also correct that the answering brief contains no 

specific record citations or case law supporting her arguments. We could 

find Lee’s arguments waived due to the omissions. See Varco, Inc. v. UNS 

Electric, Inc., 242 Ariz. 166, 170 n.5 (App. 2017) (noting that waiver for failure 

to comply with ARCAP 13 is discretionary). But in the exercise of our 

discretion, we decline to apply waiver, and will consider Lee’s arguments. 

See id. 

I. The superior court erred by relying on the unadmitted report 

from Lee’s analyst in rendering its judgment, but any error was 

harmless because Lee’s analyst testified at the hearing. 

¶13 Gutierrez contends the superior court improperly relied on a 

report made by Lee’s handwriting analyst in concluding the signature on 

the Document was not Richard’s. 
IN RE RICHARD L.

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¶14 During the evidentiary hearing, the superior court ruled that 

the untimely-submitted report would not be admitted into evidence. But 

in its decision, it stated: “Having considered the testimony and reviewed the 

reports from both handwriting analysts, the Court concludes that Ms. Lee’s 

analyst presented testimony and a report that was more persuasive than 

Ms. Gutierrez’s analyst.” (Emphasis added.) Although the court had 

discretion not to admit the report, once the court excluded it, it was 

improper for the court to rely on it to support its decision that the cursive 

signature was not Richard’s. 

¶15 At the evidentiary hearing, however, Lee’s handwriting 

analyst testified about how she arrived at the conclusion that Richard did 

not make the cursive signature. The court expressly stated it considered 

both analysts’ testimony in reaching its decision. Thus, other evidence in 

the record—that the court expressly stated it relied on—supported its 

decision. See Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (“An abuse of 

discretion exists when the record, viewed in the light most favorable to 

upholding the trial court’s decision, is ‘devoid of competent evidence to 

support’ the decision.”). 

II. The record supports the superior court’s conclusion that the 

cursive signature in the Document was not Richard’s. 

¶16 Gutierrez argues the superior court’s conclusion that the 

cursive signature was not Richard’s was clearly erroneous and not 

supported by the weight of the evidence. Whether part of a holographic 

will is in the decedent’s handwriting is a question of fact. In re Biehn’s Estate, 

41 Ariz. 403, 415–16 (1933). We affirm the superior court’s findings of fact 

absent clear error. In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5 (App. 2000). 

The superior court “is in the best position to judge the credibility of the 

witnesses, the weight of evidence, and also the reasonable inferences to be 

drawn therefrom.” Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166, 171 

(1971). 

¶17 The court heard testimony addressing the Document and 

signature from both parties’ handwriting analysts, as well as testimony 

from Gutierrez and her brother regarding the circumstances of Richard 

drafting the Document. Gutierrez’s analyst believed the cursive signature 

to be Richard’s; Lee’s analyst did not. The record reflects that the court 

carefully considered both parties’ evidence, found Lee’s analyst’s testimony 

that the cursive signature was not Richard’s to be more persuasive, and 

determined Gutierrez’s and her brother’s testimony not to be credible. We 
IN RE RICHARD L.

Decision of the Court

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will not substitute our discretion for the superior court’s or reweigh 

conflicting evidence. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009). 

III. The superior court needs to determine whether the block-letter 

name in the Document is Richard’s signature.

¶18 Gutierrez alternatively argues that even if the cursive 

signature was not Richard’s, the handwritten block-letter name at the end 

of the Document was Richard’s signature and therefore the Document is a 

valid holographic will under Section 14-2503. Section 14-2503 provides: “A 

will that does not comply with [Section] 14-2502 is valid as a holographic 

will, whether or not witnessed, if the signature and the material provisions 

are in the handwriting of the testator.” 

¶19 Here, the parties’ expert testimony appeared to center around 

whether the cursive signature was Richard’s; the experts’ dispute about its 

authenticity was based on the “pen lift” in the Document that Lee’s expert 

testified was not present in the other signature examples. Both experts 

agreed the rest of the text in the Document was Richard’s handwriting. 

Gutierrez alternatively argued that the handprinted block-letter name was 

also Richard’s signature and therefore sufficient to make the will valid 

under Section 14-2503.

¶20 The court made express factual findings that it found Lee’s 

expert “more persuasive” than Gutierrez’s, and that Gutierrez’s and her 

brother’s testimony “about conversations they had with [Richard] about the 

Document” was not credible. It then concluded because “the signature on 

the Document was not written by [Richard],” Richard did not sign the will, 

and therefore died intestate. (Emphasis added.) The court’s use of the 

singular version of “signature” suggests that it only determined the cursive 

signature was not Richard’s. It is unclear if the court considered whether 

the handwritten block-letter name was Richard’s “signature” and even if it 

did, the court did not make an express factual finding about it.

¶21 “The important thing is that the testamentary part of the will 

be wholly written by the testator and of course signed by him.” In re 

Morrison’s Estate, 55 Ariz. 504, 510 (1940). Although the court found that 

the Document itself demonstrated testamentary intent, it did not resolve the 

question of whether the Document contains signatory intent regarding the 

handwritten block-letter name. See Bishop v. Norell, 88 Ariz. 148, 151 (1960)

(“[T]he general rule is that a writing or memorandum is ‘signed’ in 

accordance with the statute of frauds if it is signed by the person to be 

charged by any of the known modes of impressing a name on paper, 
IN RE RICHARD L.

Decision of the Court

7

namely, by writing, printing, lithographing, or other such mode, provided 

that same is done with the intention of signing.”) (Emphasis added.); see also In 

re Wilkin’s Estate, 54 Ariz. 218, 222 (App. 1939) (even if testamentary intent 

is clear, the decedent must authenticate the Document as a testamentary 

instrument) (citing In re Estate of Tyrrell, 17 Ariz. 418, 422 (1915) (“The 

omission of any of the requirements of the statute will not be overlooked 

on the ground that it is beyond question that the paper was executed by the 

decedent as his will . . . and there is no question of his testamentary 

purpose[.]”))

¶22 We therefore vacate the portion of the court’s order to the 

extent it found that Richard died intestate, and remand for the court to

determine whether Richard intended the handwritten block-letter name to 

be his signature. We express no opinion on how it should be resolved.

IV. We decline to award Gutierrez attorneys’ fees and costs or

sanction Lee.

¶23 Gutierrez requests we award her attorneys’ fees and costs on 

appeal, which we decline to do. Gutierrez also requests that we sanction 

Lee, which we decline to do. See ARCAP 25.

CONCLUSION

¶24 We hold that the superior court did not err in relying on Lee’s 

unadmitted expert report. We also affirm the superior court’s finding that 

the cursive signature was not made by Richard. But we vacate the court’s 

finding that Richard died intestate, and remand the case for the superior 

court to determine whether Richard intended for the handwritten blockletter name to serve as his signature finalizing the Document as a valid will.