In the Matter of the Estate of Juanita Valcarce (Valcarce v. Valcarce)

2013 UT App 95_________________________________________________________
THE UTAH COURT OF APPEALS
IN THE MATTER OF THE ESTATE OF
JUANITA MARIE VALCARCE.
______________________________
JOHN VALCARCE,
Petitioner and Appellee,
v.
PAUL VALCARCE,
Respondent and Appellant.
Opinion
No. 20110863‐CA
Filed April 18, 2013
First District, Brigham City Department
The Honorable Ben H. Hadfield
No. 103100018
Paul Valcarce, Appellant Pro Se
Jack H. Molgard, Attorney for Appellee
JUDGE CAROLYN B. MCHUGH authored this Opinion, in which
JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
McHUGH, Judge:
¶1 Paul Valcarce appeals from the trial court’s order probating
the estate of his sister, Juanita Marie Valcarce; from the denial of his
motion to alter or amend judgment; and from the denial of his
motion for a new trial. We affirm.
In re the Estate of Juanita Marie Valcarce
BACKGROUND1
¶2 Juanita Valcarce (Decedent) died on March 8, 2010, survived
by her siblings Paul Valcarce (Appellant), John Valcarce (Appellee),
Edward E. Valcarce (Edward), and Ann Merrill.2 After Decedent’s
death, Appellee and Edward filed a motion to Admit and Probate
the Last Will and Testament of the Decedent (Motion to Probate
1991 Will). In the Motion to Probate 1991 Will, Appellee alleged
that Decedent had executed a will sometime in 1991 (the 1991 Will),
that the original of it had been lost, and that despite reasonable
diligence, he was unaware of any instrument revoking the 1991
Will. Appellee requested that Decedent’s estate be administered
according to the lost 1991 Will, rather than through intestacy.
Appellant contested the validity of the 1991 Will and argued that
it should not be admitted to probate.
¶3 The factual issues were tried on May 18 and 27, 2011.
Although Appellant was present at trial only on May 27, 2011, he
was represented by counsel throughout the proceedings. Likewise,
while Merrill was not present at trial on either date, she was
represented by the same counsel as Appellant throughout the trial
court proceedings.
¶4 During trial, Appellee called attorney Jeff Thorne, who
testified that sometime in 1991 he had prepared the 1991 Will for
Decedent. Thorne believed that the 1991 Will was properly
1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and recite the facts
accordingly.” Pasker, Gould, Ames & Weaver, Inc. v. Morse, 887 P.2d
872, 873 n.1 (Utah Ct. App. 1994).
2. Ann Merrill is not a party to this appeal. Although Appellant
purports to represent her interests, he is not an attorney admitted
to practice before the Utah courts and he filed his own appeal
without the assistance of counsel. Therefore, Appellant cannot
represent Merrill in these proceedings. See Lundahl v. Quinn, 2003
UT 11, ¶ 7, 67 P.3d 1000 (discussing pro se litigant’s inability to
“represent the legal interests of other persons”).
20110863‐CA 2 2013 UT App 95In re the Estate of Juanita Marie Valcarce
executed, that the original of it was delivered to the Decedent, and
that, consistent with his firm’s practice, he retained only an
unsigned copy of the 1991 Will in addition to the notes he made
during his meeting with Decedent. Although Thorne did not have
a specific recollection of Decedent executing the 1991 Will, he
explained that it was his firm’s practice for secretaries to act as
witnesses and for the attorney to act as a notary in executing a will.
Thorne believed the original 1991 Will was properly executed by
the Decedent, witnessed by two firm employees, and notarized by
him because, if it had not been, the original would have been kept
with the copy in the firm’s files. Thorne also testified that his firm
was paid for drafting Decedent’s 1991 Will, which further indicated
that the original had been signed and executed. The unsigned,
undated, and unwitnessed copy of the 1991 Will was received as an
exhibit at trial, without objection. The terms of the 1991 Will, as
reflected in the copy, indicate that Decedent left her entire estate to
Appellee and another sibling, Arland Valcarce, who predeceased
Decedent.
¶5 Edward also testified at trial, indicating that he found a one‐
page will (the One‐Page Will) at Decedent’s house a few days after
her death. He could not recall what color the One‐Page Will was,
whether it was typewritten or handwritten, single or double
spaced, or notarized. Although Edward did remember that the
One‐Page Will was signed by Decedent and two witnesses, he
testified that he did not read the names of the witnesses and,
therefore, could not identify them. He did not establish the date of
the One‐Page Will or indicate whether it included a date. Edward
testified that he gave the One‐Page Will to the Appellant, who told
Edward during a subsequent telephone conversation that he was
considering destroying it.3 Neither the One‐Page Will nor a copy of
it were produced at trial.
3. Appellant did not testify at trial and therefore did not dispute
Edward’s allegation that he had threatened to destroy the One‐
Page Will.
20110863‐CA 3 2013 UT App 95In re the Estate of Juanita Marie Valcarce
¶6 Edward also testified regarding an affidavit, admitted as an
exhibit at trial, that he filed with the trial court in support of the
Motion to Probate 1991 Will. Consistent with his affidavit, Edward
indicated that during a visit to the Decedent in her home six
months before her death, she showed him an executed will that
was dated sometime in the early 1990s and appointed Appellee as
a personal representative of her estate. Edward stated that he read
and discussed the contents of that will with Decedent and that they
were the same as the terms in the copy of the 1991 Will located in
Thorne’s office. Edward also explained that the One‐Page Will he
found after Decedent’s death was not the same will that Decedent
had shown to him six months earlier but that it contained
essentially the same terms regarding distribution of her estate.
¶7 The trial court issued its memorandum decision on June 7,
2011, finding that “[Decedent] executed the [1991 Will] received as
Exhibit #1 in 1991. Said [1991 Will] acknowledges her various
siblings and directs that her entire estate be given to her brothers,
Arland Valcarce and [Appellee]. Arland Valcarce predeceased
[Decedent].” The trial court additionally found, “[Edward’s]
testimony was at times somewhat confusing yet seemed credible.
His testimony amounts to a declaration against interest because he
receives inheritance from the estate if there is no will, yet receives
nothing if either of the wills of which he testified are recognized by
the court.” The trial court then applied those factual findings to the
legal question of “whether either the 1991 [W]ill or the [One‐Page
Will] . . . govern distribution of [D]ecedent’s estate, or whether the
estate should be distributed pursuant to Utah’s laws of intestacy.”
Ultimately, the court determined “that the 1991 [W]ill governs
[D]ecedent’s estate.” Based on these findings and legal conclusions,
the trial court issued its order on August 2, 2011.
¶8 Appellant and Merrill filed a motion for a new trial on
August 3, 2011, alleging that Appellant was denied his
constitutional rights of due process and confrontation because
“[Appellant] was unable to hear what was said, what was asked,
and any rulings made by the [c]ourt during the trial . . . because the
20110863‐CA 4 2013 UT App 95In re the Estate of Juanita Marie Valcarce
bailiffs made him turn the volume down on the hearing device,
given [to] him by the clerks.” On August 5, 2011, Appellant and
Merrill also filed a motion to alter or amend judgment, claiming
that the trial court “failed to consider . . . controlling case law when
it entered its decision admitting the unsigned, undated, and
unattested alleged copy of [Decedent’s] will into probate.”
¶9 The trial court denied both motions on August 30, 2011. It
determined that Appellant had “waived any objection concerning
his ability to fully participate in this trial by . . . wait[ing]
approximately two months after the decision was rendered . . .
before raising this issue.” Alternatively, the trial court determined
“that any such defect constitutes harmless error and is not
inconsistent with substantial justice. [Appellant] was fully
represented by counsel at trial. [Appellant’s] counsel could fully
hear the proceedings and was able to fully present [Appellant’s]
case and defense in this matter.” Additionally, the court found,
“[Appellant’s] attorney made the tactical decision to allow his
client not to testify. The [c]ourt will not now allow a second bite at
the apple because [Appellant] and his attorney regret this
decision.” Subsequently, the trial court found “that any such
‘irregularity in the proceedings’ did not prevent [Appellant] from
having a fair trial.” Last, in rejecting the motion to alter or amend
judgment, the trial court reaffirmed its decision, stating “that the
evidence adduced at trial establishes by clear and convincing
evidence that the [D]ecedent intended the 1991 Will to constitute
her will regardless of any deficiencies in its execution.”4
¶10 Appellant filed a timely notice of appeal. In his docketing
statement, Appellant challenges for the first time the trial judge’s
impartiality. According to Appellant, he learned only after
judgment that, when Thorne drafted the 1991 Will, Thorne and the
trial judge were partners in the law firm of Mann, Hadfield &
4. We discuss later in this opinion our conclusion that the proper
standard for proving execution is by a preponderance of the
evidence. See infra ¶ 27.
20110863‐CA 5 2013 UT App 95In re the Estate of Juanita Marie Valcarce
Thorne. As a result, Appellant seeks reversal and a new trial on the
ground that the trial judge should have recused himself.
ISSUES AND STANDARDS OF REVIEW
¶11 Appellant challenges the sufficiency of the evidence
underlying the trial court’s findings of fact, and the trial court’s
legal conclusions based on those facts. “[W]e review a trial court’s
factual findings under a clearly erroneous standard and the legal
sufficiency of those findings, as well as the legal conclusions based
on those findings, under a correction‐of‐error standard.” Kimball v.
Kimball, 2009 UT App 233, ¶ 15, 217 P.3d 733.
¶12 Appellant also argues that the trial court abused its
discretion when it denied his motions under rule 59 to alter or
amend judgment and for a new trial. See Utah R. Civ. P. 59
(providing grounds to alter or amend a judgment and for new
trial). “Generally, we afford trial judges wide latitude in granting
or denying rule 59 motions. . . . Consequently, we generally disturb
a trial court’s grant or denial of a rule 59 motion only if it
constitutes an abuse of discretion.” Sanpete Am., LLC v. Willardsen,
2011 UT 48, ¶ 28, 269 P.3d 118. “An abuse of discretion may be
demonstrated by showing that the district court relied on ‘an
erroneous conclusion of law’ or that there was ‘no evidentiary basis
for the trial court’s ruling.’” Kilpatrick v. Bullough Abatement, Inc.,
2008 UT 82, ¶ 23, 199 P.3d 957 (quoting Morton v. Continental Baking
Co., 938 P.2d 271, 274 (Utah 1997)).
¶13 Last, Appellant argues that the trial judge should have
recused himself due to his membership in the law firm that drafted
the 1991 Will during the same time that Thorne prepared it. See
Utah R. Civ. P. 63(b)(1) (stating that a disqualification motion shall
be filed “not later than [twenty] days after . . . the date on which the
moving party learns or with the exercise of reasonable diligence
should have learned of the grounds upon which the motion is
based”); see also id. R. 59(a) (providing grounds for a new trial).
20110863‐CA 6 2013 UT App 95In re the Estate of Juanita Marie Valcarce
ANALYSIS
I. The Evidence of Proper Execution Was Consistent with
Statutory Requirements
¶14 Appellant first argues that the trial court failed to follow
controlling law because it ruled that the 1991 Will had been
properly executed despite Appellee’s failure to offer the testimony
of at least one of the witnesses to the 1991 Will. Formal testacy
proceedings are governed by the Utah Uniform Probate Code
(UUPC). See Utah Code Ann. §§ 75‐3‐401 to ‐414 (Michie 1993).5
Appellee’s Motion to Probate 1991 Will asserts that the original of
that document cannot be found and thus falls within the provisions
governing probate when “the original will is neither in the
possession of the court nor accompanies the petition” and is “lost,
destroyed, or otherwise unavailable.” See id. § 75‐3‐402(2).
Appellee, as proponent of the 1991 Will, has the “burden of
establishing prima facie proof of due execution in all cases . . . .” See
id. § 75‐3‐407(1).
¶15 The proof necessary to establish due execution is discussed
in section 75‐3‐406, which provides,
(1) If evidence concerning execution of an attested
will which is not self‐proved is necessary in
contested cases, the testimony of at least one of the
attesting witnesses, if within the state, competent,
and able to testify, is required. Due execution of an
attested or unattested will may be proved by other
evidence.
(2) If the will is self‐proved, compliance with
signature requirements for execution is conclusively
presumed and other requirements of execution are
5. Because the portions of the Utah Code relevant to our decision
are unchanged, we cite to the current version of the code for the
convenience of the reader.
20110863‐CA 7 2013 UT App 95In re the Estate of Juanita Marie Valcarce
presumed subject to rebuttal without the testimony
of any witness upon filing the will and the
acknowledgment and affidavits annexed or attached
thereto . . . .
Id. § 75‐3‐406.
¶16 Here, Appellee argues that the 1991 Will “was self‐proved
in compliance with Utah Code [section] 75‐2‐504 allowing the [1991
Will] to be admitted to probate without the testimony of any
subscribing witness.” See generally id. § 75‐2‐504 (LexisNexis Supp.
2012) (“A will may be simultaneously executed, attested, and made
self‐proved, by acknowledgment thereof by the testator and
affidavits of the witnesses, each made before an officer authorized
to administer oaths under the laws of the state in which execution
occurs, whether or not that officer is also a witness to the will, and
evidenced by the officer’s certificate, under official seal . . . .”).
Although Appellant does not challenge the inclusion of a self‐
proving affidavit in the body of the 1991 Will, he claims that the
submission of an unsigned copy of that affidavit cannot satisfy
section 75‐3‐406(2).6 Therefore, he contends that the trial court erred
by not requiring the testimony of at least one attesting witness.7 We
6. The Georgia Supreme Court seems to have adopted a contrary
position. See Westmoreland v. Tallent, 549 S.E.2d 113, 114–16 (Ga.
2001) (holding that where only an unsigned copy of a will in an
attorney’s possession could be found, the lost will could be
validated by uncontroverted testimony from the notary public who
notarized the decedent’s signature on a self‐proving affidavit,
without complying with the statutory requirement that all
subscribing witnesses testify if available).
7. Appellant also contends that the trial court improperly ignored
our decision in In re Estate of Erickson, 766 P.2d 1085 (Utah Ct. App.
1988), aff’d, 806 P.2d 1186 (Utah 1991), when it determined that the
1991 Will was properly executed. However, In re Estate of Erickson
addresses the statutory requirements for execution of a valid
(continued...)
20110863‐CA 8 2013 UT App 95In re the Estate of Juanita Marie Valcarce
need not determine if the 1991 Will was self‐proved, however,
because we conclude that Thorne’s testimony regarding its
execution fulfills the requirement of section 75‐3‐406(1) that “at
least one of the attesting witnesses” testify concerning execution.8
See id. § 75‐3‐406(1) (Michie 1993).
¶17 The UUPC does not specifically define who may serve as an
“attesting witness” for purposes of section 75‐3‐406(1). Nor does it
employ the same term, “attesting witness,” when describing the
formalities of a will. See id. § 75‐2‐502 (LexisNexis Supp. 2012).
Instead, the UUPC broadly provides that “[a]n individual generally
competent to be a witness may act as a witness to a will,” see id.
§ 75‐2‐505, and further requires that a will be signed “by at least
two individuals, each of whom signed within a reasonable time
after he witnessed either the signing of the will . . . or the testator’s
acknowledgment of that signature or acknowledgment of the will,”
see id. § 75‐2‐502(1). Additionally, in laying out the requirements for
7. (...continued)
holographic will, not whether there is sufficient evidence that the
decedent executed a written will that has been subsequently lost.
See id. at 1086.
8. Because we conclude that Thorne could serve as an attesting
witness, we need not consider the circumstances under which
“[d]ue execution of an attested or unattested will may be proved by
other evidence.” See Utah Code Ann. § 75‐3‐406(1) (Michie 1993);
see generally Wheat v. Wheat, 244 A.2d 359, 363 (Conn. 1968)
(“[P]roof of any . . . element of due execution, may come from
sources other than the attesting witnesses.”); Spangler v. Bell, 60
N.E.2d 864, 867 (Ill. 1945) (“[T]he law does not . . . leave a will or
codicil entirely dependent upon the testimony of the subscribing
witnesses. . . . The fact to be established is the proper execution of
the will. If that is proved, it is sufficient, no matter from what
source the evidence may come.” (citations omitted)); 95 C.J.S. Wills
§ 671 (2011) (“The due execution of a will may be sufficiently
established by circumstantial evidence or the testimony of
witnesses other than the attesting witnesses.”).
20110863‐CA 9 2013 UT App 95In re the Estate of Juanita Marie Valcarce
creating a self‐proved will, the UUPC indicates that an “officer
authorized to administer oaths under the laws of the state in which
execution occurs,” such as a notary, may perform a notarial act
“whether or not that officer is also a witness to the will . . . .” See id.§ 75‐2‐504(1); see also id. § 46‐1‐7 (LexisNexis 2010) (“A notary may
not perform a notarial act if the notary . . . is a signer of the
document that is to be notarized except in case of a self‐proved will as
provided in Section 75‐2‐504.” (emphases added)). Thus, there is
nothing in the plain language of the UUPC that prohibits Thorne
from serving as an attesting witness for purposes of proving
execution under section 75‐3‐406(1).
¶18 Utah case law has not addressed whether “attesting
witness” refers only to the individuals who serve as official
witnesses to the execution of a will or whether it encompasses any
individuals who could personally attest to the execution of the will,
including the notary who was present during its execution. Cf.
Cazares v. Cosby, 2003 UT 3, ¶¶ 17, 20, 65 P.3d 1184 (standing for the
analogous proposition that “when a notary acknowledges the
execution of a deed, having personally witnessed that execution,
the notary qualifies as a subscribing witness within the meaning of
section 57‐2‐10” which requires that, if available, a subscribing
witness testify to prove execution of a deed). “Because Utah case
law is not fully developed on this issue, we look to the case law
from other jurisdictions for guidance.” State v. Montiel, 2005 UT 48,
¶ 15, 122 P.3d 571 (citation and internal quotation marks omitted).
¶19 Numerous jurisdictions have held that a notary who signs
a will in his or her capacity as a notary may be considered a valid,
attesting witness to the will, regardless of whether he intended to
sign only as a notary. See, e.g., Smith v. Neikirk, 548 S.W.2d 156, 158
(Ky. Ct. App. 1977) (“Testimony presented by [the notary] indicates
that she witnessed the testator sign the will, then signed the will as
a notary, and returned the will to him. The entire transaction
indicates that [the notary] was there to witness the will and to
further sign in an official capacity. The fact that she signed as a
notary is merely surplusage.”); In re Estate of Martinez, 664 P.2d
1007, 1012–13 (N.M. Ct. App. 1983) (holding that the notary was a
20110863‐CA 10 2013 UT App 95In re the Estate of Juanita Marie Valcarce
valid, attesting witness where the notary observed the testator sign
the will, the notary signed the will by notarizing the testator’s
signature, and the notary was identified in the will as a notary); In
re Estate of Zelikovitz, 923 P.2d 740, 744 (Wyo. 1996) (“There is no
provision in the Wyoming statutes, nor any ruling in our cases, that
would inhibit the notary public from serving as a witness, even if
she intended to and did sign the document as a notary public.”).
¶20 Other jurisdictions have held that a notary may serve as an
“attesting witness” to prove execution “where such person could
have served as a witness, under the circumstances, had he signed
in that capacity.” See Simpson v. Williamson, 611 So. 2d 544, 546 (Fla.
Dist. Ct. App. 1992) (citing Annotation, Wills: Character as Witness
of One Who Signed Will For Another Purpose, 8 A.L.R. 1075 (1920)). In
In re Estate of Alfaro, 703 N.E.2d 620 (Ill. App. Ct. 1998), the court
held that “a notary’s signature may be deemed the signature of an
attesting witness so long as all of the legal requirements of a valid
attestation were nonetheless complied with when the notary
affixed his signature.” Id. at 627. The court explained,
[T]he question to be determined is whether the
notary was attesting merely to the genuineness of a
signature or signatures and was therefore acting only
in the capacity of a notary or whether the notary was
attesting to all of the acts required by the statute that
comprise the proper execution of the will and he was
therefore acting as an attesting witness.
Id. The Illinois court concluded that only in the latter situation can
a notary serve as a valid, attesting witness. Id.
¶21 Likewise, other courts have determined that a notary may
qualify as an attesting witness if he or she otherwise fulfills the
requirements of an attesting witness. For example, in In re Estate of
Black, 102 P.3d 796 (Wash. 2004), the court explained, “[A] notary’s
signature met the legal requirements of attestation where the
notary interacted with the testator and could judge his competency,
the notary declared the testator signed the will in her presence, the
20110863‐CA 11 2013 UT App 95In re the Estate of Juanita Marie Valcarce
testator requested she sign the will, and she was qualified to be a
witness.” Id. at 804; see also In re Estate of Gerhardt, 763 A.2d 1289,
1291, 1293 (N.J. Super. Ct. Ch. Div. 2000) (holding that when a
notary acts “strictly in his capacity as a notary public purporting to
take an oath, [and] his signing is not effective as an attesting
witness,” the notary becomes an attesting witness by ensuring that
the testator voluntarily and willingly executed the will, was over
eighteen years of age, of sound mind, and not acting under any
constraint or undue influence); In re Estate of Teal, 135 S.W.3d 87,
91–92 (Tex. App. 2002) (holding that a notary who did not intend
to sign a will as a subscribing witness nonetheless served as a
credible, attesting witness when she asked the testator about his
will, confirmed that he was familiar with the will’s contents and
dispositions, and confirmed that he signed it of his own free will).
¶22 Moreover, these courts have held that where a notary
qualifies as an “attesting witness,” his testimony may be sufficient
to establish due execution of a contested will. See In re Estate of Teal,
135 S.W.3d at 90, 92 (holding that because a notary qualified as an
attesting witness, the notary’s “testimony was sufficient to prove
the will” and fulfill Texas’s statutory requirement that one attesting
witness must testify when a will is not self‐proved); see also In re
Estate of Kero, 591 So. 2d 675, 676–77 (Fla. Dist. Ct. App. 1992) (per
curiam) (holding that the testimony of the only surviving attesting
witness, the attorney who drafted the will, was sufficient to
establish that an unsigned copy of a will was identical to the
original executed by the decedent for purposes of proving the
content of a lost original will for probate); In re Estate of Mecello, 633
N.W.2d 892, 899–900 (Neb. 2001) (holding that the testimony of an
attesting witness—the attorney who prepared the will—established
prima facie proof that the will was properly executed and fulfilled
Nebraska’s statutory requirement that “the testimony of at least
one of the attesting witnesses, if within the state competent and
able to testify, is required” (citation and internal quotation marks
omitted)).9
9. While we do not address this issue, we note that some courts
(continued...)
20110863‐CA 12 2013 UT App 95In re the Estate of Juanita Marie Valcarce
¶23 We agree with the approach taken by other jurisdictions that
a notary, who is otherwise competent to be a witness, can testify as
an “attesting witness” to prove proper execution of a will when he
or she was present during execution and had an opportunity to
assess the competency of the testator. By signing an attestation
clause, a witness does “nothing more than set forth in words things
which the witnesses are supposed to observe anyway: that the
testator is of sound mind and not acting under undue influence.”
See In re Estate of Baxter, 399 P.2d 442, 444 (Utah 1965) (holding that
9. (...continued)
have determined that the testimony of any individual who could
personally attest to execution may be sufficient to admit a will to
probate. See, e.g., Thompson v. Hardy, 43 S.W.3d 281, 286 (Ky. Ct.
App. 2000) (“[P]ersons who were present during the executing of
a will, but who did not serve as attesting witnesses, may offer
sufficient evidence to establish due execution.”); White v. Brennan’s
Adm’r, 212 S.W.2d 299, 300–01 (Ky. Ct. App. 1948) (holding that
due execution was established by an attorney, who had retained a
carbon copy of the testator’s will which had been lost, where he
testified that he prepared the will, that he was familiar with the
requirements for a valid will, that he remembered the execution
ceremony of the particular will in question, and that he had
observed the signing of the will by the two witnesses, though he
could not recall who those witnesses were); In re Saxlʹs Estate, 222
N.Y.S.2d 765, 766 (N.Y. Sur. Ct. 1961) (holding that, absent any
contrary testimony, no reasonable doubt could exist as to the
sufficiency of execution where the attorney, who was not a
signatory witness to the will but who supervised its execution,
testified to facts establishing its proper execution); In re Estate of
Wachsmann, 563 N.E.2d 734, 737–38 (Ohio Ct. App. 1988)
(“Appellant did not sign the will; hence, he was not a legal witness
to it. . . . It is clear that appellant’s testimony [that he was present
at execution], standing alone, established a prima facie case for the
will’s admission to probate. Absent a showing that appellant was
incompetent to testify, the court erred in refusing to probate the
will since a prima facie case establishing the statutory requirements
for making a will had been made.”).
20110863‐CA 13 2013 UT App 95In re the Estate of Juanita Marie Valcarce
the witnesses’ signatures located at the end of the attestation clause
but not at the end of the will, were effective). Here, Thorne’s trial
testimony fulfills the same function. He testified that he met with
Decedent and took notes regarding how she wished to distribute
her estate, prepared the 1991 Will, and acted as the notary in
certifying its execution by the testator and the witnesses. In doing
so, Thorne became familiar with Decedent’s intention and mental
capacity when the 1991 Will was executed, and neither he nor
Appellant called into question the soundness of Decedent’s mind
or suggested that she was unduly influenced. See Utah Code Ann.
§ 75‐3‐407(1) (Michie 1993) (“Contestants of a will have the burden
of establishing lack of testamentary intent or capacity [or] undue
influence . . . .”).
¶24 By testifying, Thorne fulfilled the UUPC’s mandate that “the
testimony of at least one of the attesting witnesses, if within the
state, competent, and able to testify, is required” in contested cases
of formal testacy proceedings.10 See id. § 75‐3‐406(1). Therefore, we
reject Appellant’s argument that the trial court failed to comply
with the statutory requirements of section 75‐3‐406(1).
II. The Trial Court’s Findings of Fact Are Not Clearly Erroneous
¶25 Next, Appellant claims that the evidence does not support
the trial court’s finding that the 1991 Will was properly executed.
In particular, Appellant contends that because Thorne did not have
a specific recollection of watching Decedent execute the 1991 Will,
his testimony was insufficient to support a finding that it was
executed. Before we undertake that analysis, we pause to consider
the level of proof required on this point.
10. Although Thorne testified that the two witnesses to the 1991
Will were secretaries employed by his firm, neither were called at
the trial as attesting witnesses and no evidence was presented as to
whether either witness was no longer in the state, incompetent, or
unable to testify.
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¶26 Although the UUPC establishes that the “[p]roponent[] of a
will [has] the burden of establishing prima facie proof of due
execution,” it does not specify what standard of proof is applicable.
See id. § 75‐3‐407. Prior to adoption of the UUPC, however, Utah
courts required a proponent to prove that the will was properly
executed by a preponderance of the evidence. See In re Dong Ling
Hing’s Estate, 2 P.2d 902, 904 (Utah 1931) (“The burden of proof was
on the proponent of the will to establish by preponderance of the
evidence both the lawful execution by the testator, and attestation
thereof by the witnesses.”). While the Utah appellate courts have
not had occasion to address that issue since the adoption of the
UUPC, the intent of the Utah Legislature in adopting the act was to
“simplify and clarify the law concerning the affairs of decedents
. . . .” See Utah Code Ann. § 75‐1‐102(2)(a); see also In re Estate of
Erickson, 766 P.2d 1085, 1086 (Utah Ct. App. 1988) (stating that the
Utah Legislature intended the provisions of the UUPC “to validate
a will whenever possible”), aff’d, 806 P.2d 1186 (Utah 1991).
Furthermore, the UUPC states, “Unless displaced by the particular
provisions of this code, the principles of law and equity
supplement its provisions.” See Utah Code Ann. § 75‐1‐103 (Michie
1993).
¶27 For example, the UUPC expressly provides that the
proponent of a will must establish by clear and convincing
evidence that a document or writing, which fails to comply with
the requirements that a will be in writing, signed by the testator,
and signed by two attesting witnesses, was intended by the
decedent to constitute his or her will. See id. § 75‐2‐503(1)
(LexisNexis Supp. 2012). In contrast, no standard of proof is
indicated for proving execution of a will. See id. § 75‐3‐406(1)
(Michie 1993). Thus, we conclude that where the Utah Legislature
intended to deviate from the standard of proof that existed before
the adoption of the UUPC, it did so expressly. With respect to
execution of an attested will that is not self‐proved, the Utah
Legislature did not displace the preponderance standard existing
under pre‐UUPC decisions. Accordingly, Appellee had the burden
of proving that “the greater weight of the evidence” supported a
finding that the 1991 Will had been properly executed. See Handy
20110863‐CA 15 2013 UT App 95In re the Estate of Juanita Marie Valcarce
v. United States Bank, Nat’l Ass’n, 2008 UT App 9, ¶ 25, 177 P.3d 80(citation and internal quotation marks omitted). We now consider
whether the trial court clearly erred in finding execution of the 1991
Will under that less onerous standard.
¶28 Appellant alleges that the evidence presented at trial is
insufficient to support the trial court’s finding that “[Decedent]
executed the [1991] Will received as Exhibit #1.” Specifically,
Appellant argues that the unsigned, undated, and unwitnessed
copy of the 1991 Will does not “indicat[e] any date [Decedent]
allegedly ever signed the [1991 Will,] . . . the names of any
witnesses who allegedly attested to the validity of [Decedent’s]
signature on the original [1991 Will,] or . . . the identity of the
notary who allegedly notarized the original [1991 Will].” He
further claims that “[t]here is simply no evidence indicating that
the alleged original [1991 Will] was ever signed, notarized or
witnessed, other than Mr. Thorne’s belief, speculation, and
conclusion” to the contrary.
¶29 However, Thorne provided detailed testimony about his
normal practices with respect to the preparation and retention of
wills prepared for firm clients during the relevant time period.
Based on those practices, he indicated that he had prepared the
1991 Will for Decedent and acted as the notary to its execution. He
also testified that, based on the normal practices of his firm, he
believed the 1991 Will had been properly executed and witnessed.
In particular, he indicated that the 1991 Will was “in writing,”
“signed by the testator,” and “signed by at least two individuals,
each of whom signed within a reasonable time after he witnessed
either the signing of the will as described in Subsection (1)(b) or the
testator’s acknowledgment of that signature or acknowledgment
of the will.” See Utah Code Ann. § 75‐2‐502(1) (LexisNexis Supp.
2012); see also id. § 75‐2‐506 (“A written will is valid if executed in
compliance with Section 75‐2‐502 . . . .”). Although Appellant
contends that Thorne’s lack of a specific memory of Decedent
signing the 1991 Will is fatal to its probate, Utah decisions have
long relied on testimony about usual practices as evidence of what
was done in a particular instance. See, e.g., In re Estate of Wheadon,
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579 P.2d 930, 931 (Utah 1978) (relying on usual practices of an
attorney’s law firm as evidence that the decedent was given the
original copy of a will); cf. Wells Fargo Bank Nevada, NA v. Toronto,
2008 UT App 269U, para. 4 (mem.) (holding that the trial court
properly relied on the bank’s evidence of its normal business
practice in finding that the cardholder’s credit card came with
written terms and conditions).
¶30 The testimony provided by Thorne was also corroborated by
Edward.11 He testified by affidavit and at trial that he visited
Decedent six months prior to her death and that she showed him
an executed will dated in the early 1990s. According to Edward, he
read and discussed the contents of that will with the Decedent and
the terms were the same as those in the copy of the 1991 Will
introduced at trial. Thus, a reasonable inference from Edward’s
testimony is that he saw the executed copy of the 1991 Will
approximately six months before Decedent’s death.
¶31 Although Appellant concedes that Edward’s affidavit
supports the trial court’s determination that the 1991 Will was
properly executed, he claims that Edward “never testified about
seeing [the 1991 Will] at trial.” Review of the trial transcript belies
that claim. While Edward did not offer the information during his
direct examination, Appellant’s cross‐examination of Edward
included a nearly verbatim reading of the affidavit into the record.
And the trial court admitted the affidavit as a trial exhibit upon
Appellant’s motion. Contrary to Appellant’s argument that the trial
court “had to make [its] decision on the unsigned, undated,
unwitnessed supposed copy of [Decedent’s] will from the
11. In addition to the testimony of an attesting witness, or instead
of such evidence when an attesting witness is not “within the state,
competent, and able to testify,” the “[d]ue execution of an attested
or unattested will may be proved by other evidence.” See Utah
Code Ann. § 75‐3‐406(1) (Michie 1993). Although there was no
evidence presented that the witnesses to the 1991 Will were
unavailable, Edward’s testimony is relevant to corroborate that
provided by Thorne.
20110863‐CA 17 2013 UT App 95In re the Estate of Juanita Marie Valcarce
testimony at trial [and] not other things,” the trial court could rely
on the contents of the affidavit in making its factual findings. See
Utah R. Civ. P. 43(a) (“All evidence shall be admitted which is
admissible under the Utah Rules of Evidence or other rules
adopted by the Supreme Court.”); id. R. 52(a) (“Findings of fact,
whether based on oral or documentary evidence, shall not be set
aside unless clearly erroneous.”).12
¶32 Appellant also challenges the trial court’s finding that
“[Edward’s] testimony was at times somewhat confusing yet
seemed credible. His testimony amounts to a declaration against
interest because he receives inheritance from the estate if there is no
will, yet receives nothing if either of the wills of which he testified
are recognized by the court.” Appellant contends, “[Edward’s]
testimony was so crazy you can’t believe anything he said,” and
specifically argues that Edward’s inability to recall particularities
about the One‐Page Will—testimony unrelated to the 1991
Will—undermines the trial court’s credibility determination.
However, this court has consistently held that “[t]he trial court has
an advantaged position in assessing the credibility of witnesses and
we will not disturb its determination of that issue on appeal.” See
Grgich v. Grgich, 2011 UT App 214, ¶ 14, 262 P.3d 418; see also Lefavi
v. Bertoch, 2000 UT App 5, ¶ 20, 994 P.2d 817 (“The trial court is in
the best position to assess the credibility of witnesses and to derive
a sense of the proceeding as a whole, something an appellate court
cannot hope to garner from a cold record.” (citation and internal
quotation marks omitted)). Furthermore, the trial court is correct
that the terms of both of the wills testified to by Edward left him
12. While Appellant acknowledges that the affidavit was admitted
as an exhibit at trial, he argues that it was admitted only for
impeachment purposes to show that the affidavit was inconsistent
with Edward’s trial testimony because it did not mention the One‐
Page Will. However, even if that were true, such evidence may be
considered for substantive purposes. See Utah R. Evid. 801(d)(1)
advisory committee’s note (indicating that the Utah rule deviates
from the federal rule in that it allows the use of prior inconsistent
statements for substantive purposes in certain circumstances).
20110863‐CA 18 2013 UT App 95In re the Estate of Juanita Marie Valcarce
nothing and that he would inherit if Decedent died intestate. In
response, Appellant offers mere speculation about a hypothetical
side deal between Appellee and Edward.13
¶33 Appellant has not met his burden of establishing that the
trial court’s findings are clearly erroneous. Accordingly, we accept
the trial court’s factual findings based on the evidence at trial and
affirm the trial court’s determination that the 1991 Will was
properly executed. Because Appellant has not otherwise challenged
the trial court’s determination that the 1991 Will should govern the
distribution of Decedent’s estate, we also affirm the trial court’s
order accepting it for probate.14
III. The Trial Court Did Not Abuse Its Discretion in Denying
Appellant’s Motion to Alter or Amend and Motion for New Trial
¶34 Appellant asserts that the trial court abused its discretion by
denying his motion to alter or amend. Appellant’s claim is based
entirely on his challenges to the sufficiency of the evidence
underlying the trial court’s findings of fact and the trial court’s
13. Appellant also challenges the sufficiency of the evidence by
claiming that there was never any proof presented to the trial court
that Decedent actually paid Thorne for creating the 1991 Will.
However, the proof provided to the trial court was Thorne’s
testimony, which the trial court believed.
14. Specifically, Appellant has not challenged the trial court’s
determination that “the evidence presented at trial was sufficient
to rebut the presumption that the lost 1991 [W]ill was intentionally
revoked” and that “there is no indication that the 1991 [W]ill was
revoked as required by the [UUPC].” See Utah Code Ann. § 75‐2‐
507(3) (LexisNexis Supp. 2012) (establishing a presumption that a
will can be revoked by execution of a subsequent will); In re
Frandsen’s Will, 167 P. 362, 363–64 (Utah 1917) (discussing the well‐
established presumption that when a properly executed will is not
produced for probate, the decedent is presumed to have destroyed
the will with the intent of revoking it).
20110863‐CA 19 2013 UT App 95In re the Estate of Juanita Marie Valcarce
legal conclusions based on those facts. Because we affirm the
court’s findings, and its legal conclusions based on those findings,
we also conclude that the trial court acted within its discretion in
denying Appellant’s motion to alter or amend.
¶35 Appellant next contends that the trial court abused its
discretion by denying his motion for a new trial. In support,
Appellant claims that he was unable to hear the proceedings before
the trial court because the courtroom bailiff told him he had to turn
down the hearing device provided to him by the court clerks, as it
was causing a buzzing noise in the court microphones.
Subsequently, Appellant claims that he was denied his right to
confront witnesses and his right of due process guaranteed to him
under the Sixth and Fourteenth amendments to the United States
Constitution. See generally U.S. Const. amend. VI, XIV.
¶36 Rule 59 of the Utah Rules of Civil Procedure provides that
“a new trial may be granted to all or any of the parties and on all
or part of the issues, for any . . . [i]rregularity in the proceedings of
the court . . . by which either party was prevented from having a
fair trial.” See Utah R. Civ. P. 59(a)(1). When reviewing the trial
court’s “ultimate decision to grant or deny a new trial, we will
reverse only if there is no reasonable basis for the decision.”
Crookston v. Fire Ins. Exch., 817 P.2d 789, 805 (Utah 1991), holding
modified by Westgate Resorts, Ltd., v. Consumer Prot. Grp., LLC, 2012
UT 55, 285 P.3d 1219; see also Okelberry v. West Daniels Land Assʹn,
2005 UT App 327, ¶ 20 n.14, 120 P.3d 34 (reviewing a rule 59
motion under the abuse of discretion standard). “Moreover, we
have stated that absent a showing by the appellant that the trial
outcome would have differed, every reasonable presumption as to
the validity of the verdict below must be taken as true upon
appeal.” Child v. Gonda, 972 P.2d 425, 429 (Utah 1998).
¶37 Under the circumstances of this case, we cannot say that the
trial court abused its discretion in denying Appellant’s motion for
a new trial. In its decision, the trial court provided three distinct
reasons to support its decision. First, the trial court determined that
Appellant’s objection was untimely because “[Appellant] made the
20110863‐CA 20 2013 UT App 95In re the Estate of Juanita Marie Valcarce
decision to not raise this issue with his counsel or the [c]ourt
before, during, and immediately after the hearing. [Appellant]
waited approximately two months after the decision was rendered
in this matter before raising this issue.” Second, the trial court
indicated that “[Appellant] was fully represented by counsel at
trial” and “[Appellant’s] counsel could fully hear the proceedings
and was able to fully present [Appellant’s] case and defense in this
matter.” Third, the trial court determined that “[Appellant’s]
attorney made the tactical decision to allow his client not to testify”
and “[t]he [c]ourt will not now allow a second bite at the apple
because [Appellant] and his attorney regret th[at] decision.”
Because the trial court’s rationale for denying the motion for new
trial reasonably supports its decision, see Crookston, 817 P.2d at 805,
and because the Appellant has failed to show how his attorney’s
actions or the trial outcome would have been any different if he
were able to hear the proceedings or if he chose to testify, see Child,
972 P.2d at 429, the trial court did not abuse its discretion in
denying Appellant’s motion for a new trial.
IV. Unpreserved Claims
¶38 Appellant advances two additional claims on appeal,
including that the trial court should not have considered Edward’s
testimony because he was not a competent witness and that the
trial judge should have recused himself from the case because he
had worked for the same firm where Thorne was a partner. “As a
general rule, claims not raised before the trial court may not be
raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.
“In order to preserve an issue for appeal, it must be raised in a
timely fashion, must be specifically raised such that the issue is
sufficiently raised to a level of consciousness before the trial court,
and must be supported by evidence or relevant legal authority.”
State v. Richins, 2004 UT App 36, ¶ 8, 86 P.3d 759 (citation and
internal quotation marks omitted).
¶39 Although Appellant made no objection to Edward’s
testimony on grounds of incompetence, he contends that he
preserved this claim because trial counsel made statements in
20110863‐CA 21 2013 UT App 95In re the Estate of Juanita Marie Valcarce
closing argument that Edward’s testimony was potentially
incomplete and inconsistent. However, the closing argument of
counsel is not a proper objection calling to the trial court’s attention
a basis for excluding Edward’s testimony. By the time of argument,
the testimony had been admitted without objection. Therefore,
Appellant has not properly preserved this issue for review on
appeal. See id.
¶40 Appellant acknowledges that his disqualification claim is
being raised for the first time on appeal, which typically would be
fatal. See State v. Tueller, 2001 UT App 317, ¶ 8, 37 P.3d 1180(“[Appellant] acknowledges that he raises the issue of recusal for
the first time on appeal. Therefore, he has not properly preserved
it for review.”). Nevertheless, he argues that we should consider
this issue because he was unaware of the trial judge’s alleged
employment at Thorne’s law firm until after his appeal was filed.
¶41 Rule 63(b) of the Utah Rules of Civil Procedure governs the
disqualification of a judge. See generally Utah R. Civ. P. 63(b). It
provides that “[a] party to any action . . . may file a motion to
disqualify a judge,” and that the motion must be “accompanied by
a certificate that the motion is filed in good faith and shall be
supported by an affidavit stating facts sufficient to show bias . . . or
conflict of interest.” Id. R. 63(b)(1)(A). The rule further provides
that the motion must be filed “after commencement of the action,
but not later than [twenty] days after . . . the date on which the
moving party learns or with the exercise of reasonable diligence
should have learned of the grounds upon which the motion is
based.” Id. R. 63(b)(1)(B)(iii). Appellant has filed neither a motion
nor an affidavit setting forth the basis for his belief that the trial
judge was a member of the same law firm at the time Thorne
prepared the 1991 Will. See Campbell, Maack & Sessions v. Debry,
2001 UT App 397, ¶ 27, 38 P.3d 984 (holding that the failure to file
an affidavit was fatal to the party’s disqualification claim).
¶42 Even if Appellant could be excused from those requirements
due to the fact that the trial court had rendered its decision and this
appeal was pending when he first discovered the facts alleged, the
20110863‐CA 22 2013 UT App 95In re the Estate of Juanita Marie Valcarce
matter cannot be raised for the first time on appeal. Although Utah
appellate courts have had no occasion to expressly consider the
issue, decisions from other jurisdictions indicate that when a party
discovers facts supporting the disqualification of the trial judge
after judgment is entered, the proper procedure is to file a motion
for relief from judgment, similar to the relief available under Utah
Rule of Civil Procedure 60(b). See Utah R. Civ. P. 60(b) (providing
grounds for relief from judgment); see also Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 847, 863–70 (1988) (discussing a
party’s motion under the federal version of rule 60(b) in response
to information that the trial judge served on the board of trustees
of a college with a financial interest in the litigation that the party
first discovered ten months after judgment was entered); Perry v.
Schwarzenegger, 790 F. Supp. 2d 1119, 1121–23 (N.D. Cal. 2011)
(discussing a party’s motion to vacate judgment holding that
Proposition 8’s definition of marriage under the California
Constitution violates the United States Constitution upon learning,
for the first time during appeal, that the trial judge was a
homosexual and was in a same‐sex relationship at the time he
presided over the case), aff’d, Perry v. Brown, 671 F.3d 1052 (9th Cir.
2012), cert. granted, Hollingsworth v. Perry, 133 S. Ct. 786 (Dec. 7,
2012) (No. 12‐144); Petzold v. Kessler Homes, Inc., 303 S.W.3d 467, 469
(Ky. 2010) (discussing a party’s motion under Kentucky’s version
of rule 60(b) motion brought when, during appeal, they discovered
that the daughter of the opposing party was the trial judge’s
treasurer during the judge’s election campaign). By pursuing relief
from judgment in the trial court, factual issues raised by Appellant
can be explored and resolved, including the basis of Appellant’s
allegations, the time when Appellant knew or should have known
of the information, and the trial judge’s involvement with Thorne’s
law firm. Based on that factual record, the trial court can then
determine whether the participation of the trial judge warrants a
new trial. Furthermore, the rule 60(b) hearing and decision will
create a factual record for appellate review.
¶43 Unlike a trial court, we do not find facts, and our review is
limited to the factual record developed in the trial court. See In re
United Effort Plan Trust, 2012 UT 47, ¶ 6 n.4, 289 P.3d 408 (“[O]ur
20110863‐CA 23 2013 UT App 95In re the Estate of Juanita Marie Valcarce
review is ‘limited to the evidence contained in the record on
appeal.’” (quoting State v. Pliego, 1999 UT 8, ¶ 7, 974 P.2d 279)).
Therefore, we decline to consider Appellant’s claim that the trial
judge should have recused himself from serving in this matter.
CONCLUSION
¶44 The trial court did not err in probating the estate of
Decedent according to the terms of the 1991 Will. We affirm the
trial court’s factual determinations because Appellant has failed to
demonstrate how the findings were clearly erroneous.
Additionally, we conclude that the trial court acted within its
discretion in denying Appellant’s motion to alter or amend and his
motion for a new trial. Last, we determine that Appellant’s
remaining claims were not preserved for appellate review.
¶45 Affirmed.
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