In Re Richard L.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FILED 08-29-2024

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

IN RE RICHARD L.
Decision of the Court

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,

2

IN RE RICHARD L.
Decision of the Court

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.

3

IN RE RICHARD L.
Decision of the Court

¶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.

4

IN RE RICHARD L.
Decision of the Court

¶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

5

IN RE RICHARD L.
Decision of the Court

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,

6

IN RE RICHARD L.
Decision of the Court

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 block-
letter name to serve as his signature finalizing the Document as a valid will.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

7