Gonzalez v. Satrustegui

• Decision Date: 16 December 1993
• Docket Number: CA-CV,No. 1,1
• Citation: 178 Ariz. 92,870 P.2d 1188
• Parties: Mary GONZALEZ, a single woman, Plaintiff-Appellee, Cross Appellant, v. Nona SATRUSTEGUI, individually and as Personal Representative of the Estate of Frank Satrustegui, Defendant-Appellant, Cross Appellee. 91-0484.
• Court: Arizona Court of Appeals

Page 1188

870 P.2d 1188

178 Ariz. 92

Mary GONZALEZ, a single woman, Plaintiff-Appellee, Cross Appellant, v. Nona SATRUSTEGUI, individually and as Personal Representative of the Estate of Frank Satrustegui, Defendant-Appellant, Cross Appellee.

No. 1 CA-CV 91-0484.

Court of Appeals of Arizona,

Division 1, Department E.

Dec. 16, 1993.

Review Dismissed April 19, 1994.

[178 Ariz. 94] Aspey, Watkins & Diesel by Frederick M. Aspey and Jane A. Butler, Flagstaff, for appellee.

Mangum, Wall, Stoops & Warden by Robert W. Warden, Flagstaff, for appellant.

OPINION

LANKFORD, Judge.

In this appeal from summary judgment in a will contest, we find that there are no disputed genuine issues of fact regarding the validity of a will, the sufficiency of evidence establishing a contract to make a will, the validity of an alleged common law marriage, and the validity of a testamentary disposition of property in a partnership agreement. For these reasons, we affirm the summary judgment in favor of Appellee, Mary Gonzalez.

Frank Satrustegui ("Frank") and appellant Nona Satrustegui ("Nona") lived together from 1974 until Frank's death in 1988. During that time they held themselves out as husband and wife. They jointly operated a bar in Williams, Arizona, pooled their income, held joint bank accounts, jointly held title to a condominium in Phoenix, and were joint tenants of a safety deposit box. From at least 1983 until Frank's death, they filed joint federal and state tax returns as husband and wife. In 1984, Frank and Nona traveled to Kansas for Nona's family reunion and stayed there for about a week. While in Kansas, they held themselves out to Nona's family as husband and wife.

In the fall of 1986, Frank and Nona agreed to make joint and reciprocal wills. They ordered form will kits by mail. When the forms arrived, Nona filled in the blanks. Frank's will stated that he was married to Nona Satrustegui and that all of his estate would go to his wife. Frank named Nona as his personal representative and named an alternate personal representative. The form stated that all previous wills and codicils were revoked. Similarly, Nona's form stated that she was married to Frank Satrustegui and that all of her property would go to him. Frank was to be Nona's personal representative, and she also listed an alternate personal representative.

On November 10, 1986, Frank and Nona took their forms to a bank in Williams. They signed them in the presence of each other and Carol Steffens, a bank employee. Steffens notarized their signatures. No one else witnessed the signing, and no witnesses signed either form in the places provided for witness signatures.

Frank died suddenly in June, 1988. Nona is identified on Frank's death certificate as his wife.

In July, 1988, Nona, identifying herself as Frank's wife, commenced a probate proceeding in superior court for Frank's estate. She was appointed personal representative of the estate. Her application for appointment stated that she was unaware of any unrevoked testamentary instrument executed by Frank. Nona filed a closing statement in March, 1989, and all of Frank's real and personal property, totaling about $226,000, was distributed to her.

In June 1989, appellee Mary Gonzalez, Frank's sister, filed a petition with the court alleging that the assets of the estate were improperly conveyed to Nona. She asked the court to remove Nona as personal representative and appoint Gonzalez as personal representative of Frank's estate, to set aside the transfers of the estate assets to Nona, and to order an accounting of estate assets and income. In response, Nona asserted that on November 10, 1986, Frank had executed a will in which he devised all of his property to Nona.

Gonzalez filed a motion for summary judgment arguing that the 1986 will was not valid because it was not executed in accordance with the formal requirements of Ariz.Rev.Stat.Ann. ("A.R.S.") section 14-2502 and that Nona could not take Frank's estate as his surviving wife because Frank and Nona were not married. Gonzalez based her claim to the estate on a will executed by Frank on October 21, 1971. In the 1971 will, Frank left all his property to Gonzalez and appointed her as his personal representative. The 1971 will was drafted by an attorney and signed by the attorney and his wife as witnesses.

In response, Nona argued that there was no dispute that Frank signed the will form in the presence of two witnesses, Nona and Carol Steffens. She further argued that she and Frank had a valid common law marriage because they held themselves out as married during a week-long visit to Kansas.

Nona also filed a cross-motion for summary judgment alleging that even if the form was not a valid will, it constituted a written contract to make a will leaving his estate to Nona. Alternatively, Nona asserted that she had a valid partnership with Frank in which they owned assets jointly and under which the survivor succeeded to the property of the other.

The superior court granted Gonzalez's motion for summary judgment and denied Nona's cross-motion for summary judgment. It entered partial summary judgment containing a certification of finality under Ariz R.Civ.P. 54(b). The judgment admitted the 1971 will to probate, removed Nona as personal representative, appointed Gonzalez as personal representative of Frank's estate, directed Nona to render an accounting of estate assets and income, and scheduled a trial to determine damages.

Nona filed a timely motion for new trial. She also submitted for the first time a copy of her 1986 will as a supplemental exhibit in support of her motion for new trial. Gonzalez moved to strike the supplemental exhibit. The court denied the motion for new trial and denied the motion to strike the supplemental exhibit. Nona timely appealed from the partial summary judgment and the denial of her motion for new trial. Gonzalez appealed from the denial of her motion to strike the supplemental exhibit.

The following issues are presented on appeal:

(1) Was the 1986 form an invalid will because it lacked the signatures of two witnesses as required by A.R.S. section 14-2502?

(2) Was there a contract to make mutual wills which gave Nona the right to all of Frank's property when he died?

(3) Did Frank and Nona have a common law marriage which entitled Nona to Frank's estate pursuant to A.R.S. sections 14-2102(2) and 14-2301?

(4) Was there a partnership agreement between Frank and Nona whereby the survivor would succeed to all of the decedent's property?

The cross-appeal presents a single issue: Did the trial court abuse its discretion by allowing a copy of Nona's will to be admitted into evidence with a motion for new trial after summary judgment adverse to Nona had been entered?

I.

Because the cross-appeal raises an evidentiary issue that affects the record on appeal, we consider it first. Gonzalez argues that the trial court should not have allowed Nona's 1986 will into evidence because it did not constitute newly discovered evidence, was hearsay, was not properly authenticated and because it was prejudicial to admit a copy of the will in lieu of the original.

We will not disturb rulings on the exclusion or admission of evidence unless the court clearly abused its discretion and prejudice resulted. Selby v. Savard, 134 Ariz. 222, 227, 655 P.2d 342, 347 (1982). In this instance, neither condition is present.

The admission of the document was not an abuse of discretion. In the summary judgment proceedings, Nona's deposition testimony regarding her 1986 will was cited to the court. In her deposition, she testified that her will was just like Frank's, that she left everything to Frank, and that she and Frank executed their wills simultaneously at the bank before notary Carol Steffens. In addition, accompanying her cross-motion for summary judgment, Nona submitted to the court an affidavit in which she stated that she executed her will on the same day that Frank executed his and that the wills were signed with the intent to carry out their agreement to execute mutual wills to leave all of their property to each other upon their deaths.

During oral argument on the motions for summary judgment, Nona's attorney explained that he had last seen Nona's will while preparing for a conference with opposing counsel on proposed exhibits and witnesses for trial and that he presumed the will was misplaced. He described the will as being a mirror image of Frank's will in which Nona left everything to Frank. The attorney offered to supplement the record with an affidavit concerning this matter if the court wished him to do so. The judge asked the attorney whether Nona's will also was not witnessed but was notarized, and the attorney responded that it was the same as Frank's will in that regard.

Gonzalez's attorney countered that Frank's will alone was insufficient to show an agreement to bequeath their property to one another. He argued that Nona's will was needed to show that it left everything to Frank. However, Gonzalez never disputed the accuracy of Nona's sworn statements as to the contents of her will. Thus, those representations were conceded for the purpose of the motions for summary judgment, and Nona's failure to supply her will to the court at that time was not fatal to her position. See Peacock v. Samaritan Health Serv., 159 Ariz. 123, 125, 765 P.2d 525, 527 (App.1988).

The trial court apparently rendered judgment relying on the oral representations of Nona and her attorney regarding the contents of her will. The later admission of Nona's will was not an abuse of discretion. An original writing is not required and its contents may be established by other evidence if the original has been lost for reasons other than bad faith. See Ariz.R.Evid. 1004(1). The will's admission also did not prejudice Gonzalez because it added no new facts and did not prompt the trial court to change its judgment in favor of Gonzalez. Acco...