Rosenberg v. Sanders

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
YVETTE ROSENBERG,
Plaintiff/Appellant,

v.

MARILYN KOKE SANDERS,
Defendant/Appellee.

No. CV-22-0170-PR
Filed December 11, 2023

Appeal from the Superior Court in Maricopa County
The Honorable Andrew J. Russell
No. CV2018-013707
AFFIRMED

Opinion of the Court of Appeals, Division One
253 Ariz. 279
VACATED

COUNSEL:

Mark House (argued), Andrea B. O’Neill, Amanda L. Barney, Becker &
House, PLLC, Scottsdale; and Eileen Dennis GilBride (argued), Jones,
Skelton & Hochuli P.L.C., Phoenix, Attorneys for Marilyn Koke Sanders

David L. Allen, David N. Farren (argued), Jaburg & Wilk, P.C., Phoenix,
Attorneys for Yvette Rosenberg
 ROSENBERG V. SANDERS
Opinion of the Court

JUSTICE KING authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
BOLICK, LOPEZ, BEENE, and MONTGOMERY joined.

JUSTICE KING, Opinion of the Court:

¶1 Alex Brandt signed a beneficiary deed leaving two of his
properties to Marilyn Sanders on his death. After Brandt’s death, his
niece, Yvette Rosenberg, sued, claiming that Sanders procured the deed
through undue influence. The trial court entered summary judgment for
Sanders.

¶2 Nearly sixty years ago, this Court set forth eight
non-exclusive factors that are “treated as significant indicia of the presence
or absence of [undue] influence” in the execution of a testamentary
document. In re Estate of McCauley (“McCauley”), 101 Ariz. 8, 10–11 (1966).
We must now determine whether statements that a grantor made after
executing a deed should be considered as a new ninth factor under the
McCauley inquiry, and whether Brandt’s alleged post-execution statements
are relevant to Rosenberg’s undue influence claim.

¶3 Although we decline to add a new ninth factor to McCauley,
we recognize that a post-execution statement may be relevant in some
cases alleging undue influence. But that is not the case here. Brandt’s
alleged post-execution statements are irrelevant to Rosenberg’s undue
influence claim. We affirm the trial court’s grant of summary judgment
in favor of Sanders.

BACKGROUND

¶4 Brandt and Sanders first met and began dating in California
during the late 1980s. Brandt proposed to Sanders in 1994, and they
moved to Arizona. They never married.

¶5 Brandt purchased three properties in Arizona—one home
where Brandt and Sanders resided and two rental properties. The titles to
the two rental properties were originally conveyed to Brandt and Sanders
as joint tenants with rights of survivorship. After Brandt and Sanders

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Opinion of the Court

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

¶6 Thereafter, Brandt began dating Marilyn Mishkin. In 2001,
Brandt signed a beneficiary deed naming Mishkin as the beneficiary of his
home and two rental properties upon his death. In 2004, Brandt sold one
of the rental properties. Brandt and Mishkin also never married, and they
broke up in approximately 2005.

¶7 Thereafter, Brandt executed a new beneficiary deed naming
Rosenberg as the beneficiary of his home and one remaining rental property
(collectively the “Properties”) upon his death. Rosenberg, who lived in
Canada, was the daughter of Brandt’s sister, Susan Rosenberg (“Susan”).
According to Rosenberg, Brandt spoke over the phone with Susan “almost
every day” and with Rosenberg “regularly,” and he was very close to both
of them. Brandt had no family in Arizona.

¶8 Brandt and Sanders resumed a relationship between 2006 and
2008. Although Sanders had been living in California, she eventually
returned to Arizona. Sanders purchased a condominium for herself in
Peoria, but at some point she moved in with Brandt.

¶9 Brandt’s health began to deteriorate in late 2016. He was
taken to the emergency room and hospitalized on different occasions up
until his death in 2018. From late 2016 to early 2017, Sanders cooked
Brandt’s meals and drove him to doctor appointments and the hospital.
Nonetheless, Brandt still drove himself very short distances.

¶10 Brandt was hospitalized from March 9 to 11, 2017, and his
discharge summary noted “cognitive impairment,” “memory loss,” and
“consult neurology.” On March 30, 2017, however, another doctor
referred to Brandt’s insight as “normal” and conversation as “appropriate.”
Then, in June 2017, Brandt’s primary care physician noted that Brandt was
complaining of “fatigue” and “not thinking as clearly as normal.” But in
September 2017, Brandt received a routine physical exam and obtained a
perfect score on a cognitive assessment. Brandt had various other medical
issues in 2017, including fatigue, weight loss, weakness, blurry vision,
diabetes, and kidney disease.

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¶11 On April 6, 2017, Brandt executed a deed naming Sanders as
the beneficiary of the Properties upon his death (“2017 deed”), and
Rosenberg was removed as the beneficiary. On April 12, 2017, Brandt
recorded the 2017 deed with the Maricopa County Recorder’s Office, and
the deed became a public record. See A.R.S. § 33-405(E) (“A beneficiary
deed is valid only if the deed is executed and recorded as provided by law
in the office of the county recorder of the county in which the property is
located before the death of the owner or the last surviving owner.”).

¶12 Sanders testified at her deposition that Brandt presented the
2017 deed to her as a birthday gift two months later (in June 2017) and that
she did not know that he had signed the deed prior to her birthday.
Sanders also produced an affidavit of her friend, Cynthia Brown, stating
that a couple of days after Sanders’ birthday, “Alex mentioned to me that
he had put [Sanders’] name on the deed to his real property as a birthday
present to her.”1 Although Rosenberg disputes these assertions, she did
not produce any evidence to the contrary.

¶13 At her deposition, Rosenberg testified as follows concerning
the 2017 deed:

Q. Do you have any belief or any evidence to support
that Alex didn’t prepare this document?

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

Q. So he signs the document April 6th. It’s recorded on
April 12th. Do you have any evidence to suggest that he
is not the one that directed it to be recorded?

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

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

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

grounds.

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Opinion of the Court

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

Q. Do you have any evidence at all that Marilyn was
active in the procurement of this document?

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

¶14 According to Rosenberg, Brandt never told her or other
family members about executing the 2017 deed. But Rosenberg testified
at her deposition that, with the sole exception of when he named Rosenberg
on the beneficiary deed in 2005, Brandt did not discuss his financial affairs
with her. In addition, Rosenberg did not produce any evidence that she
had asked Brandt what he had done with the deed or that his silence with
relatives on this type of financial matter was unusual.

¶15 In late-May 2018, nearly fourteen months after Brandt
executed the 2017 deed, he became very ill and was taken to the emergency
room with “a 48 hour history of altered mentation,” hypotension, and a
recent history of pneumonia. He was hospitalized for several days. On
June 2, 2018, Brandt wanted to leave the hospital, but medical staff
concluded that he should remain because he was “not decisional.”

¶16 Rosenberg spoke with Brandt over the telephone while he
was in the hospital, and she described him as “very distressed.”
Thereafter, Rosenberg and Susan traveled to Arizona to visit Brandt.
Rosenberg claims that Brandt made several statements to her at the
hospital—specifically, that he was “afraid of” Sanders, “she was trying to
kill him and steal his assets,” “she had taken his cell phone, thereby
preventing him from calling” Rosenberg and Susan, and “he wanted the
hospital to block [Sanders] from coming to his room or from talking to him
on the phone.” Rosenberg further claims that Brandt asked her to cancel
the credit card he gave Sanders, “check the status of his checking and credit
card accounts to determine whether [Sanders] accessed his cash funds,” and
“retrieve the contents of his safety deposit box because he was concerned
that [Sanders] would attempt to remove the contents.”

¶17 On June 3, 2018, a hospital psychiatrist visited Brandt to
assess his mental capacity. He described Brandt as “alert, oriented, and
pleasant and cooperative.” The psychiatrist’s report noted that Brandt

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Opinion of the Court

was “being treated for an acute respiratory decompensation” and
“requir[ed] oxygen to maintain his saturation.” Although he previously
did not have capacity to leave the hospital while he was recovering from
his infection, “his mental status [was] improving.” The psychiatrist
further noted in the report, “The patient states that he no longer trusts his
domestic partner with whom he has lived over the past 10 years. He did
not want to get into details, but his family is concerned that she may [be]
trying to take advantage of him by getting him to sign paperwork about his
rental properties.” The psychiatrist concluded that Brandt had capacity to
make medical decisions, including the designation of a power of attorney.

¶18 On June 4, 2018, Brandt signed a Power of Attorney
appointing Rosenberg as his agent with respect to his personal finances.
Brandt also signed a Medical Power of Attorney appointing Susan to make
medical decisions on his behalf. On June 5, 2018, Brandt was discharged
from the hospital, and he returned home with Sanders.

¶19 On September 1, 2018, Brandt passed away at his home.
After Brandt’s death, Sanders informed Rosenberg of the 2017 deed.

¶20 Rosenberg filed suit against Sanders, seeking to invalidate the
2017 deed as a product of undue influence. Sanders moved for summary
judgment. After briefing and oral argument, the trial court addressed
each of the eight McCauley factors and concluded that Rosenberg had “not
presented evidence from which a reasonable trier of fact could conclude
that [Sanders] unduly influenced Mr. Brandt into executing the [2017]
Beneficiary Deed.” Because there were “no genuine issues of material fact
in dispute on this point,” the court entered summary judgment for Sanders.

¶21 The court of appeals largely agreed with the trial court’s
findings as to the eight McCauley factors, stating that “Rosenberg did not
present enough evidence to defeat summary judgment under the McCauley
factors alone.” Rosenberg v. Sanders, 253 Ariz. 279, 283–84 ¶¶ 20–32 (App.
2022). But the court went on to determine that “our de novo review of this
record reveals a ninth factor”—a “[s]tatements of [g]rantor” factor. Id.
at 284–85 ¶¶ 32–34 (noting “the McCauley factors are not exclusive”). The
court explained that, because the trial court “focused on the McCauley
factors, [it] did not consider Brandt’s alleged statements from 2018, while
hospitalized, fourteen months after he signed and recorded the 2017 deed.”

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Id. at 284 ¶ 33. When considered, the court believed “this evidence barely
frames a material question of disputed fact” and thus “the record had just
enough evidence to create a factual dispute and defeat summary
judgment.” Id. at 284 ¶ 33, 285 ¶ 38. The court therefore reversed and
remanded for trial. Id. at 286 ¶ 40.

¶22 We granted review to determine whether a grantor’s
post-execution statements should be added to the eight-factor McCauley
inquiry as a new ninth factor, an issue of statewide importance. This
Court has jurisdiction under article 6, section 5(3) of the Arizona
Constitution.

DISCUSSION

¶23 Under Arizona Rule of Civil Procedure 56(a), “[t]he court
shall grant summary judgment if the moving party shows that there is no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” Summary judgment must be granted where
“the facts produced in support of the [non-movant’s] claim . . . have so little
probative value, given the quantum of evidence required, that reasonable
people could not agree with the conclusion advanced by the proponent of
the claim.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990).

¶24 We review de novo a grant of summary judgment. Delgado
v. Manor Care of Tucson AZ, LLC, 242 Ariz. 309, 312 ¶ 10 (2017). “Because
the superior court granted summary judgment, we review the facts and
reasonable inferences in the light most favorable to . . . the non-moving
party.” Id. at 311 ¶ 2.

A. Should This Court Add A Grantor’s Post-Execution
Statements As A New Ninth Factor Under McCauley?

¶25 Under Arizona law, “a person unduly influences a testat[or]
in executing a will when that person through his power over the mind of
the testat[or] makes the latter’s desires conform to his own, thereby
overmastering the volition of testat[or].” McCauley, 101 Ariz. at 10
(cleaned up).

¶26 McCauley sets forth a non-exclusive eight-factor inquiry to
determine when a testamentary document has been procured through
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Opinion of the Court

undue influence. Id. at 10–11. These eight factors that “have been treated
as significant indicia of the presence or absence of such influence” are:

Whether the alleged influencer has made fraudulent
representations to the testat[or]; whether the execution of the
will was the product of hasty action; whether the execution of
the will was concealed from others; whether the person
benefited by the will was active in securing its drafting and
execution; whether the will as drawn was consistent or
inconsistent with prior declarations and plannings of the
testat[or]; whether the will was reasonable rather than
unnatural in view of the testat[or’s] circumstances, attitudes,
and family; whether the testat[or] was a person susceptible to
undue influence; and whether the testat[or] and the
beneficiary have been in a confidential relationship.

Id. (cleaned up).

¶27 As a threshold matter, we must consider whether to add the
post-execution statements of a grantor as a new ninth factor under
McCauley. We decline to do so. The post-execution statements of a
grantor are more properly characterized as a type of evidence that may
support one of the existing eight McCauley factors. For example, if a
grantor’s post-execution statement is relevant and admissible under the
Arizona Rules of Evidence, it may support the alleged influencer’s
fraudulent representations to the grantor (first McCauley factor), the alleged
influencer’s active participation in securing the drafting and execution of
the document (fourth McCauley factor), the consistency or inconsistency of
the document with the grantor’s other declarations and plannings (fifth
McCauley factor), or the grantor’s susceptibility to undue influence (seventh
McCauley factor). Thus, we conclude that adding post-execution
statements to the McCauley inquiry as a new stand-alone factor is
unnecessary.

¶28 This, however, does not result in a per se exclusion of all
evidence of a grantor’s post-execution statements. Courts may consider
all evidence that is admissible and relevant to a claim of undue influence.
See Ariz. R. Evid. 401, 402.

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Opinion of the Court

¶29 “Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Ariz. R. Evid. 401. On
the issue of relevance in the context of an undue influence claim, In re
O’Connor’s Estate is instructive:

We said in In re Greene’s Estate, . . . ‘Evidence as to mental
condition before or after the execution of the will is important
only in so far as it tends to show mental condition at the time
of the execution of the will.’
....
[W]e are concerned here with the actual mental condition of
the testatrix . . . at the time of the execution of the will in question,
at which time all witnesses present testified that she was calm,
composed and knew what she was doing. We are concerned
with evidence of her mental condition before and after that
time only insofar as it tends to show her mental condition at
the time she executed the will.

74 Ariz. 248, 257–58 (1952) (emphasis added); see also id. at 260–61
(concluding that the evidence of O’Connor’s condition when she executed
the will did not support the jury’s finding of undue influence).

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

Although the evidence shows that Mrs. Harber had extensive
hospitalization toward the end of her life, there is no
indication she was in a physical or mental condition which
rendered her susceptible to the exertion of undue influence
upon her at the time of the execution of her will. It is necessary
for the contestants to introduce sufficient evidence to show
that the testatrix’ will was overpowered and the will of
another substituted in its stead, in order for a jury to find that
the will was a product of undue influence.

102 Ariz. 285, 291–92 (1967) (emphasis added); see also In re Vermeersch’s
Estate, 109 Ariz. 125, 127 (1973) (“This court . . . is not concerned with a
generally deteriorated mental condition; the law is concerned only with the
state of the testat[or’s] mind at the time of the execution of the will.” (emphasis

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Opinion of the Court

added)). Arizona law “is very clear that attention must be directed to the
situation at the time the will is executed in preference to some previous
time.” Parrisella v. Fotopulos, 111 Ariz. 4, 7–8 (1974) (concluding the
contestants did not establish this requirement that undue influence was
“present [a]t the time of the execution of the will”).

¶31 Accordingly, a grantor’s post-execution statement is relevant
to an undue influence claim if it addresses the grantor’s state of mind or
mental condition, or the circumstances present, at the time of the execution
of the document. This includes whether the post-execution statement was
consistent or inconsistent with the executed document, which is the fifth
McCauley factor. See McCauley, 101 Ariz. at 11, 15 (concluding the will was
“entirely inconsistent with decedent’s oft-repeated purpose to exclude” her
former and current husbands from sharing the property). Indeed, this is
consistent with the Court’s long-standing assessment of how
post-execution statements evidence the testator’s state of mind at the time
of execution. See In re Vermeersch’s Estate, 109 Ariz. at 129 (relying on a
testator’s “declarations made to the nurse at the rest home months after the
will was executed,” as the will “was absolutely consistent with [these]
declarations”); In re Harber’s Estate, 102 Ariz. at 291–92 (concluding that
evidence of testator’s hospitalization and doctor’s comment about her
deteriorating health did not support undue influence because it only spoke
to her susceptibility after she executed her will, not “at the time of the
execution of her will”); In re O’Connor’s Estate, 74 Ariz. at 261 (concluding
there is no evidence of undue influence where “the many repetitions of
deceased to different people of her intent to dispose of the property as she
did in the will . . . shows a permanent fixed mind to carry out [her] plan”);
In re Westfall’s Estate, 74 Ariz. 181, 184 (considering evidence that two
witnesses, who saw testatrix and had a conversation with her “at the
signing of the will and not in excess of 40 minutes,” testified “that she was
competent”); see also In re Frick’s Estate, 13 Ariz. App. 247, 248, 252–53 (1970)
(considering, as part of the McCauley inquiry, testator’s statements made in
letter dated about one month after execution of will).

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B. Are Brandt’s Alleged Post-Execution Statements
Relevant?

¶32 We now consider whether Brandt’s alleged post-execution
statements in the hospital in June 2018 are relevant to Rosenberg’s undue
influence claim.

¶33 As an initial matter, we disagree with the court of appeals that
before granting summary judgment, the trial court “did not consider
Brandt’s alleged statements from 2018, while hospitalized, fourteen months
after he signed and recorded the 2017 deed.” Rosenberg, 253 Ariz. at 284
¶ 33. The trial court explained in its order that it had “reviewed and
considered” Sanders’ motion for summary judgment, Rosenberg’s
response, Sanders’ reply, the parties’ respective statements of fact, the
arguments made by counsel at oral argument, and “the record in this
matter” before ruling on the motion. We observe that Rosenberg’s
response, statement of facts, and declaration all discussed Brandt’s alleged
statements in the hospital in June 2018. Thus, the record demonstrates
that the trial court in fact considered Brandt’s alleged post-execution
statements, even though it did not specifically address them, before
granting Sanders’ summary judgment motion. See Fuentes v. Fuentes, 209
Ariz. 51, 55–56 ¶ 18 (App. 2004) (“Although the trial court’s signed minute
entry does not specifically detail [the husband’s] financial situation, the
foregoing evidence is presumed to have been fully considered by the court
prior to issuing its decision.”).

¶34 Here, Brandt’s alleged post-execution statements in the
hospital were made fourteen months after he executed the 2017 deed.
They did not reference his state of mind, his mental condition, or the
circumstances present when he executed the 2017 deed, nor did they
reference how he planned to distribute the Properties. Instead, the alleged
statements only speak to Brandt’s then-current state of mind and mental
condition at the time of his hospitalization in June 2018—specifically, that
he was afraid of Sanders and no longer trusted her. While such statements
may demonstrate his feelings toward Sanders in June 2018, they do not
address his state of mind, his mental condition, or the circumstances

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present “at the time of the execution of” the 2017 deed. 2 See In re
O’Connor’s Estate, 74 Ariz. at 257–58; In re Harber’s Estate, 102 Ariz. at 291–
92; In re Vermeersch’s Estate, 109 Ariz. at 127; Parrisella, 111 Ariz. at 7.

¶35 Brandt’s alleged post-execution statements in the hospital are
not relevant to whether Sanders exerted undue influence upon Brandt
when he executed the 2017 deed or whether that deed was the product of
undue influence. The post-execution statements are therefore
inadmissible. See Ariz. R. Evid. 402. For that reason, we need not
address the parties’ arguments about whether the post-execution
statements are inadmissible hearsay.

C. Did The Trial Court Err In Granting Summary Judgment
In Favor Of Sanders?

¶36 Finally, we turn to whether the trial court erred in granting
summary judgment for Sanders.

¶37 Arizona law presumes that a person who executed a deed did
so free from undue influence. See A.R.S. § 14-2712(B) (“It is a rebuttable
presumption that a person who executes a governing instrument is
presumed to have capacity to execute the governing instrument and to have
done so free from undue influence and duress.”); A.R.S. § 14-1201(28)
(defining “governing instrument” to include a “deed”). A party
challenging the validity of a deed has the burden of establishing its
invalidity by a preponderance of the evidence. See A.R.S. § 14-2712(D).

¶38 Arizona law provides, however, that an inverse presumption
arises that a deed was the product of undue influence if the alleged
influencer either (1) had a confidential relationship with the decedent, was
active in procuring the creation and execution of the deed, and is a principal
beneficiary of the deed, or (2) prepared the deed and is a principal

2 We do not place a specific timeframe on the relevance of post-execution
statements for undue influence claims. We cannot state, as a matter of law,
that a relevant statement transforms into one that is irrelevant in all
instances after a specific amount of time has passed between a document’s
execution and a post-execution statement. In each case, the trial court
must determine the relevance and admissibility of each alleged
post-execution statement under the Arizona Rules of Evidence.
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beneficiary of the deed. See A.R.S. § 14-2712(E)(1)–(2). Here, Sanders
produced evidence that Brandt gave the 2017 deed to her two months after
its execution as a birthday gift, and she did not previously know he had
signed the deed. Rosenberg did not produce any evidence to contradict
these points. Further, Rosenberg did not produce any evidence that
Sanders prepared the 2017 deed, or actively participated in procuring its
creation and execution. Based on this lack of evidence, Rosenberg has
failed to establish the factors under § 14-2712(E)(1)–(2). Therefore, the
inverse presumption does not apply for the benefit of Rosenberg.

¶39 In our de novo review of the grant of summary judgment, we
conclude that Rosenberg did not produce evidence creating a genuine
dispute as to any material fact on the first six McCauley factors.

(1) Did Sanders make fraudulent representations to Brandt?
Rosenberg did not produce evidence that Sanders made
fraudulent representations to Brandt through which she
“attempted to obtain control over [Brandt] and to alienate
[him from his] family . . . in order to supplant [his]
confidence in these people and promote [her] own
advantage.” McCauley, 101 Ariz. at 13. Rosenberg did not
create a genuine dispute as to any material fact on this factor.

(2) Was the 2017 deed’s execution the product of hasty action?
Rosenberg did not present evidence that Brandt’s execution
of the 2017 deed was hasty. Instead, Brandt executed it two
months before presenting it to Sanders as a birthday gift.
See McCauley, 101 Ariz. at 14 (determining that action was
“hasty” where decedent called an attorney “from the
hospital shortly before the will was signed and asked him to
draw a will” and “[t]he execution was accomplished . . . in
approximately ten minutes” at the hospital).

(3) Was the execution of the 2017 deed concealed from others?
Rosenberg claims that Brandt’s family did not know about
the 2017 deed. But the 2017 deed was a public record,
Brandt did not traditionally discuss his financial affairs with
Rosenberg, she did not ask Brandt what he had done with

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the deed, and Rosenberg did not demonstrate that his silence
with relatives on such a financial matter was unusual.

(4) Was Sanders active in securing the drafting and execution of
the 2017 deed? Rosenberg did not present evidence that
Sanders was active in the drafting or execution of the 2017
deed, and as discussed, any inferences she offers do not
create a genuine dispute as to any material fact. Section C,
¶¶ 45-50.

(5) Was the 2017 deed as drawn consistent or inconsistent with
prior declarations and plannings of Brandt? The 2017 deed
was consistent with Brandt’s practice of leaving his
properties to female companions. Rosenberg did not
present evidence that the 2017 deed as drawn was
inconsistent with Brandt’s prior declarations or plannings.

(6) Was the 2017 deed unnatural in view of Brandt’s
circumstances, attitudes, and family? The 2017 deed was
reasonable in view of Brandt’s circumstances, attitudes, and
values. The 2017 deed continued Brandt’s practice of
granting an interest in his properties to female companions
when he had such companions in his life.

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

¶40 As to the seventh McCauley factor, we acknowledge that the
parties presented conflicting evidence about Brandt’s susceptibility to
undue influence when he executed the 2017 deed. This evidence includes
medical records. In addition, Rosenberg presented an expert opinion that
Brandt was susceptible to undue influence in April 2017, although Sanders
presented an expert opinion that Brandt was not susceptible to undue
influence at that time.

¶41 As to the eighth McCauley factor, the parties agree that
Sanders and Brandt were in a confidential relationship. Rosenberg has
established this factor.

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¶42 The focus here, as with all claims of undue influence, is
whether Sanders “through [her] power over the mind of [Brandt] ma[de]
the latter’s desires conform to [Sanders’] own, thereby overmastering the
volition of [Brandt].” See id. at 10. Although none of the McCauley
“factors standing alone or even in combination with some others, may be
sufficient to sustain a finding of undue influence, the force of the
combination of all these factors may be sufficient to raise a question of fact
as to the existence of undue influence.” Id. at 11.

¶43 We recognize that undue influence may be established by
circumstantial evidence. Id. at 10. However, to establish an undue
influence claim, “[m]ore must be proved than mere opportunity and
motive.” In re Silva’s Estate, 105 Ariz. 243, 246 (1969). On this point, our
case law provides guidance. In one case, this Court determined that an
alleged influencer’s (1) confidential relationship with decedent, (2) activity
in preparing the wills, and (3) status as principal beneficiary were
insufficient to sustain a finding of undue influence. In re Pitt’s Estate, 88
Ariz. 312, 316–18 (1960). In another case, this Court held the “fact that [the
beneficiary] had the opportunity to exercise such influence over deceased
is not sufficient to establish undue influence and to invalidate a will.” In
re O’Connor’s Estate, 74 Ariz. at 260.

¶44 Here, Rosenberg’s evidence of susceptibility and the existence
of a close relationship under the seventh and eighth McCauley factors are
insufficient to defeat summary judgment. See In re Estate of Sidransky, 420
S.W.3d 90, 98 (Tex. App. 2012) (“Even in light of [a medical expert’s]
affidavit, Sidransky’s weakened physical and mental condition only
indicates her susceptibility to influence; it is no evidence that such influence
existed in fact.”); Matter of Estate of Brosius, 683 P.2d 663, 666 (Wyo. 1984)
(concluding that evidence of susceptibility and opportunity and status as
beneficiary “is wholly immaterial . . . unless it can be tied to evidence that
[appellee] actually exerted control over the testator so as to make the 1976
instrument her will rather than his”); Golladay v. Golladay, 287 S.W.2d 904,
906 (Ky. 1955) (“Mere opportunity of the wife, even though coupled, as
here, with an aged and physically weak condition of the testator, is not
sufficient to establish undue influence.”). Rosenberg’s evidence does not
amount to “evidence from which a reasonable person could conclude that
[Sanders] had a disposition to exercise such influence, that [she] had an
opportunity to exercise undue influence, that some influence was exerted,

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Opinion of the Court

and that the [2017 deed] seems to result from such influence.” See
McCauley, 101 Ariz. at 11.

¶45 Rosenberg claims that summary judgment is improper
because Brandt’s alleged post-execution statements are “inconsistent” with
Sanders’ story (noting McCauley’s fifth factor) and thereby raise
“inferences” of undue influence that the trier of fact must resolve. For
example, Rosenberg argues that Brandt’s failure to mention the 2017 deed
to Rosenberg or Susan, in combination with his alleged post-execution
statements, raises an inference that Brandt did not voluntarily sign the
deed.

¶46 Further, Rosenberg contends that Brandt “was in no
condition” to drive after his hospital discharge on March 11, 2017, noting
the medical issues documented in his discharge summary. Therefore,
Rosenberg claims that his post-execution statements raise an inference that
Sanders drove Brandt to sign and record the deed in April 2017, and this is
inconsistent with her claim that she did not know about the 2017 deed until
two months after its execution.

¶47 As to the claimed inconsistencies, we note that McCauley’s
fifth factor addresses “whether the will as drawn was consistent or
inconsistent with prior declarations and plannings” of the testator. 101
Ariz. at 11. In McCauley, the “pattern of distribution” in the will was
“entirely inconsistent with decedent’s oft-repeated purpose to exclude
husbands—including proponent—from sharing in her property.” Id.
at 15. But here, the 2017 deed was not inconsistent with Brandt’s alleged
statements in the hospital. None of the alleged declarations addressed his
state of mind, his mental condition, or the circumstances present at the time
of the execution of the 2017 deed fourteen months earlier, nor did they
reference how he planned to distribute the Properties.

¶48 Moreover, Sanders’ claims do not raise inferences of undue
influence that create a genuine dispute as to any material fact. First, the
evidence shows that Brandt did not discuss his financial affairs with
Rosenberg (except when he named her on the 2005 deed), and Rosenberg
did not produce evidence that she asked Brandt what he had done with the
deed or that his silence with relatives on such a financial matter was
unusual.

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Opinion of the Court

¶49 Second, Sanders testified that Brandt drove himself to get the
2017 deed signed and notarized on April 6, 2017. Although Rosenberg
generally claimed that Brandt “was in no condition” to drive after his
hospital discharge on March 11, 2017, Brandt signed the 2017 deed nearly
one month after his discharge. In addition, Rosenberg did not visit or
personally observe Brandt in March or April 2017; she did not visit Brandt
until October 2017. Further, Rosenberg acknowledged that Brandt was
driving himself very short distances in early 2017.

¶50 Third, as discussed, Brandt’s alleged post-execution
statements only speak to his state of mind and mental condition in June
2018 and are unrelated to the circumstances present when he signed the
2017 deed, making his statements irrelevant to the claim here. As stated
in In re Harber’s Estate, “[i]n the absence of sufficient evidence upon which
reasonable [persons] could draw an inference that undue influence had
been exerted . . . and that the will was a product of that influence the case
should not go to a jury. Mere suspicion, innuendo, insinuation and
speculation are no substitute for evidence.” 102 Ariz. at 294.
Rosenberg’s inferences do not create a genuine dispute of material fact
concerning whether Sanders exerted undue influence at the time of
execution, or whether the 2017 deed was the product of Sanders’ undue
influence.

¶51 Finally, in arguing that summary judgment was improper,
Rosenberg points to one additional alleged post-execution statement after
Brandt was discharged from the hospital in June 2018. Rosenberg’s
declaration asserts that when Susan stayed in Arizona to help care for
Brandt, “Susan asked Alex whether he had given his home to [Sanders].
He flatly denied that he had done that.” Rosenberg claims that this
statement demonstrates that Brandt “never intended to give his properties
to Marilyn, by way of beneficiary deed or otherwise.”

¶52 As an initial matter, Rosenberg does not claim that she
personally overheard this conversation between Susan and Brandt, nor did
she produce testimony or a declaration directly from Susan concerning this
alleged statement. See Ariz. R. Civ. P. 56(c)(5) (“An affidavit used to
support or oppose a motion must be made on personal knowledge [and] set
out facts that would be admissible in evidence.”). But even so, this alleged

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Opinion of the Court

statement is insufficient to defeat summary judgment. At most, it bears
upon Brandt’s state of mind after he was discharged from the hospital in
June 2018 that he had not “given his home” to Sanders. And in fact, Brandt
was the current owner of his home at that time. See A.R.S. § 33-405(A) (“A
deed that conveys an interest in real property . . . to a grantee beneficiary
designated by the owner and that expressly states that the deed is effective
on the death of the owner transfers the interest to the designated grantee
beneficiary effective on the death of the owner . . . .”); A.R.S.
§ 33-405(M)(1)–(2). The alleged statement does not create a genuine
dispute of material fact that Sanders through her power over the mind of
Brandt made his desires conform to her own, thereby overmastering the
volition of Brandt. See McCauley, 101 Ariz. at 10; see also In re Silva’s Estate,
105 Ariz. at 246 (“When a decedent leaves a large estate to a stranger,
ignoring close ties of blood, there are situations in which it may be inferred
that the will was the result of undue influence. Here, such is not the
case.”).

CONCLUSION

¶53 For the foregoing reasons, we vacate the court of appeals’
opinion although we approve much of its reasoning as to the eight
McCauley factors. We affirm the trial court’s grant of summary judgment
in favor of Sanders.

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