Opinion
2 CA-CV 2023-0077
09-11-2023
In re the Estate of Edward E. Pastrano, Deceased v. Mary C. Pastrano, as Personal Representative of the Estate of Edward E. Pastrano, Petitioner/Appellee. Gerardo E. Pastrano, Respondent/Appellant,
Gerardo E. Pastrano, Mesa In Propria Persona Law Office of John A. MacKinnon PLLC, Bisbee By John A. MacKinnon Counsel for Petitioner/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Cochise County No. S0200PB202200034 The Honorable David Thorn, Judge
Gerardo E. Pastrano, Mesa In Propria Persona
Law Office of John A. MacKinnon PLLC, Bisbee By John A. MacKinnon Counsel for Petitioner/Appellee
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, Judge
¶1 In this probate matter involving the estate of Edward E. Pastrano, his son Gerardo Pastrano appeals from the superior court's judgment in favor of Edward's former wife, Mary Pastrano. On appeal, Gerardo argues the court erred in upholding the validity of his father's will and violated his due process rights in failing to hold a hearing on the value of the estate. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In October 2012, Edward signed a will in the presence of his neighbor Clemente C., notary Hector H., and Hector's wife, Myrna H. Clemente and Myrna signed the will as witnesses; then, Hector signed and stamped it with his notary seal. In the will, Edward left his entire estate, in the absence of a "separate written list" with "specific devises of tangible personal property," to Mary if she "survive[d] [him] by 120 days," and he designated her as personal representative.
¶3 Edward died in November 2021. In January 2022, Mary applied for informal probate of the will and appointment as personal representative. Her application included an estimated value of the estate. The superior court appointed her personal representative and admitted the will to informal probate.
¶4 In February, Gerardo filed an objection challenging the informal probate proceedings. He requested a formal proceeding and contested the validity of the will, Mary's valuation of the estate, and Mary's appointment as personal representative. The superior court set an evidentiary hearing for July. Before the hearing, Mary submitted an updated valuation of the estate, and Gerardo contested it with his own valuation.
¶5 At the hearing, Gerardo argued his father's will did not meet the requirements of a self-proving will under A.R.S. § 14-2504 and the superior court could not "switch" to A.R.S. § 14-2502 to validate it. Mary conceded there was a "credible question" whether the will was self-proving but asserted there was "absolutely no question that the will meets all of the requirements of the basic standard for being a will" under § 14-2502. She called two witnesses, Clemente and Hector, to testify to the validity of the will.
¶6 After the hearing, the superior court issued an order upholding the validity of the will. It later amended the order to also deny Gerardo's "request to terminate the appointment of Mary . . . as the Personal Representative" and "to convert the matter to a Formal Probate" proceeding. The court accepted Mary's valuation of the estate and rejected Gerardo's. This appealed followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(9).
Discussion
I. Validity of the Will
¶7 Gerardo maintains on appeal that the will was invalid because it was not self-proving under § 14-2504. We review the interpretation and application of a statute de novo. See Arrett v. Bower, 237 Ariz. 74, ¶ 7 (App. 2015); see also Pedersen v. Bennett, 230 Ariz. 556, ¶ 6 (2012).
¶8 Section 14-2502 establishes the requirements for a valid will. A will is validly executed if it is in writing, signed by the testator, and signed by two witnesses. § 14-2502. Ordinarily, if the validity of the will is contested, the testimony of one of these two witnesses is required to prove its validity. A.R.S. § 14-3406(A). As an alternative, however, § 14-2504 provides a means for a will to be "made self-proved" if the testator and witnesses attest to certain statements under oath before "an officer authorized to administer oaths." See In re Est. of Muder, 159 Ariz. 173, 175 (1988) (will not self-proving where "affidavit does not state that the testator signed or acknowledged his signature, or the will, in the presence of witnesses"); In re Est. of Mackaben, 126 Ariz. 599, 601 (App. 1980) (attempt to self-prove will "deficient" where no statement that testator "signed . . . in the presence of the witnesses"). "If the will is self-proved," the will is presumed to be valid without witness testimony, unless "there is proof of fraud or forgery" to rebut that presumption. § 14-3406(B).
¶9 Gerardo asserts Edward "was attempting to make a self proving Will" and failed to do so because § 14-2504 requires "some type of action to support . . . under oath statements" and Clemente testified that he had taken "no actions to support the statements he swore to be true in his affidavit." Thus, according to Gerardo, Clemente was not "a competent witness with the ability to sign a sworn affidavit" and his signing of the will "amount[s] to fraud." He also argues the attempt to self-prove the will was deficient because Edward "swore under oath and signed" the will with a "fabricated alias." Lastly, he contends that Hector "was not authorized by statute to take his wife's oath or notarize her signature" and, by doing so, he "nullifie[d] [her] affidavit." See 2011 Ariz. Sess. Laws, ch. 343, § 9 ("A notary public is an impartial witness and shall not notarize the notary's own signature or the signatures of any person who is related to the notary by marriage or adoption.").
¶10 A will is not invalid merely because the testator tried and failed to make it self-proved. Cf. Est. of Muder, 159 Ariz. at 175-76 (decedent's will did not satisfy requirements under §§ 14-2502 and 14-2504 but satisfied requirements under A.R.S. § 14-2503). Instead, § 14-3406(A) simply requires that "an attested will which is not self-proved" be proven by "the testimony of at least one of the attesting witnesses." Here, Clemente and Hector testified that they had witnessed Edward sign his name to the will. This satisfied the requirement. See § 14-3406(A); cf. Est. of Mackaben, 126 Ariz. at 600-01 (will not admitted into probate where attempt to selfprove deficient and witnesses testified they could not remember signing the will). Because the will was proven at the hearing pursuant to § 14-3406(A), it did not need to be self-proving under § 14-2504. Thus, we do not address Gerardo's arguments that the will was not self-proving.
¶11 The validity of the will's execution does not depend on whether it was self-proved or proven by other means. It depends on the requirements for a valid will set forth in § 14-2502. Here, those requirements were met. The will was in writing. Edward signed the will as "Edward E. Pastrano," a name he had used in legal documents dating back to 1961. See State v. Carroll, 21 Ariz.App. 99, 100 (1973) ("The common law gives a person the right to assume a name not given him by his parents and allows him to make valid contracts using the assumed name."); see also Laks v. Laks, 25 Ariz.App. 58, 60 (1975) (statutory means of changing one's name "do not repeal the common law by implication or otherwise, but afford an additional method of affecting a name change"). Assuming without deciding that Myrna could not be one of the two required witnesses to execute the will, Clemente and Hector also signed it. See In re Est. of Bradley, 244 Ariz. 431, ¶ 13 (App. 2018) ("[A] notary who properly acknowledges a will necessarily qualifies as a witness.").
He legally changed his name from Eduardo Pastrana to Edward E. Pastrano in November 2012.
II. Due Process
¶12 Gerardo also argues the superior court violated his due process rights "when it failed to hold [a] hearing" on the value of the estate. "[D]ue process requires the court to allow parties a reasonable opportunity to present testimony whenever resolution of a material contested issue hinges on credibility." Volk v. Brame, 235 Ariz. 462, ¶ 14 (App. 2014). We review constitutional issues de novo. See Fragoso v. Fell, 210 Ariz. 427, ¶ 13 (App. 2005).
¶13 Initially, we note, because Edward had left the entire estate to Mary, Gerardo was not prejudiced by the superior court's ruling on the value of the estate. We therefore need not address his due process claim because "[d]ue process errors require reversal only if a party is thereby prejudiced." Volk, 235 Ariz. 462, ¶ 26. Regardless, Gerardo has shown no error.
¶14 Gerardo contends that he was not able "to present sworn testimony about the disputed value of the Estate" and that if the superior court had held a hearing, he would have "brought forward testimony from the sister and brother-in-law of the deceased about other items of value" in the estate. The record does not support his argument. Indeed, the court set an evidentiary hearing "to receive testimony regarding [Gerardo's] Objection and Request for Formal Proceedings"-giving Gerardo the opportunity to call and examine witnesses. Cf. id. ¶¶ 22, 24 (court violated petitioner's due process rights by denying him opportunity to testify, present witnesses, and cross-examine). But Gerardo did not introduce evidence or make arguments relating to the value of the estate at the hearing. See id. ¶ 22 (court can "preserve due process" without "indulg[ing] inefficient use of time by parties").
¶15 Nor does the record support Gerardo's assertion that the superior court "ignored the affidavit[]s" attached to his valuation of the estate and instead "relied solely on the filings of Counsel." On appeal, we presume the court knew and applied the law in rendering a decision based on the relevant evidence. See Fuentes v. Fuentes, 209 Ariz. 51, ¶ 32 (App. 2004); Occidental Chem. Co. v. Connor, 124 Ariz. 341, 344 (1979) (presuming trial court considered affidavits that were part of record when ruling on motion); see also Hart v. Hart, 220 Ariz. 183, ¶ 18 (App. 2009) ("presumption may be rebutted by the record"). The record here demonstrates nothing more than that the court rejected Gerardo's valuation and adopted Mary's. We defer to the court's evaluation of conflicting evidence. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13 (App. 1998).
Disposition
¶16 For the foregoing reasons, we affirm. Mary requests that we sanction Gerardo under Rule 25, Ariz. R. Civ. App. P., by awarding her attorney fees. Under Rule 25, we "may impose sanctions on an attorney or a party if . . . an appeal or a motion is frivolous, or was filed solely for the purpose of delay." In our discretion, we deny her request for attorney fees, but, as the prevailing party on appeal, she is entitled to her costs upon compliance with Rule 21, Ariz. R. Civ. App. P. See Sanborn v. Brooker &Wake Prop. Mgmt. Inc., 178 Ariz. 425, 431 (App. 1994); A.R.S. § 12-341.