{ "id": 1558814, "name": "In the Matter of the ESTATE OF Fred STROZZI, Deceased. Elsie BARBER, et al., PetitionersAppellees, v. Mary Elizabeth POUND and Mary Helen Charlene Olney, Respondents-Appellants", "name_abbreviation": "Barber v. Pound", "decision_date": "1995-08-21", "docket_number": "No. 15454", "first_page": "541", "last_page": "547", "citations": [ { "type": "official", "cite": "120 N.M. 541" }, { "type": "parallel", "cite": "903 P.2d 852" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "36 Cal.Rptr. 362", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1964, "pin_cites": [ { "page": "368", "parenthetical": "reviewing court is not permitted to seek out possible and strained construction of words used in instruction and infer that jury followed the distorted interpretation" } ], "opinion_index": 0 }, { "cite": "224 Cal.App.2d 184", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2134894 ], "year": 1964, "pin_cites": [ { "parenthetical": "reviewing court is not permitted to seek out possible and strained construction of words used in instruction and infer that jury followed the distorted interpretation" } ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/224/0184-01" ] }, { "cite": "102 N.M. 136", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580034 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "137", "parenthetical": "presumptions are in favor of verdicts and reviewing court will indulge all reasonable inferences in support of verdicts" }, { "page": "523", "parenthetical": "presumptions are in favor of verdicts and reviewing court will indulge all reasonable inferences in support of verdicts" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0136-01" ] }, { "cite": "11 A.L.R.2d 731", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1950, "opinion_index": 0 }, { "cite": "110 N.M. 206", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 717002 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "209" }, { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0206-01" ] }, { "cite": "82 N.M. 340", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5329019 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0340-01" ] }, { "cite": "794 P.2d 734", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1990, "opinion_index": 0 }, { "cite": "110 N.M. 260", "category": "reporters:state", "reporter": "N.M.", "year": 1990, "opinion_index": 0 }, { "cite": "110 N.M. 593", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716940 ], "weight": 2, "pin_cites": [ { "page": "595" }, { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0593-01" ] }, { "cite": "115 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725427 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "223" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0215-01" ] }, { "cite": "117 N.M. 306", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552682 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "314" }, { "page": "970" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0306-01" ] }, { "cite": "769 P.2d 731", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1989, "opinion_index": 0 }, { "cite": "108 N.M. 197", "category": "reporters:state", "reporter": "N.M.", "year": 1989, "opinion_index": 0 }, { "cite": "108 N.M. 583", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592777 ], "weight": 2, "pin_cites": [ { "page": "585-86" }, { "page": "1302-03" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0583-01" ] }, { "cite": "117 N.M. 284", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552658 ], "weight": 6, "pin_cites": [ { "page": "288-89" }, { "page": "384-85" }, { "page": "288" }, { "page": "289" }, { "page": "288-89" }, { "page": "384-85" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0284-01" ] }, { "cite": "118 N.M. 636", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563495 ], "weight": 2, "pin_cites": [ { "page": "641-42" }, { "page": "532-33" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0636-01" ] }, { "cite": "705 P.2d 1138", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1985, "opinion_index": 0 }, { "cite": "103 N.M. 287", "category": "reporters:state", "reporter": "N.M.", "year": 1985, "opinion_index": 0 }, { "cite": "103 N.M. 336", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711373 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nm/103/0336-01" ] }, { "cite": "120 N.M. 191", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558827 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "194-96", "parenthetical": "N.M.Ct.App.1995" }, { "page": "354-56", "parenthetical": "N.M.Ct.App.1995" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0191-01" ] }, { "cite": "644 P.2d 1040", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "opinion_index": 0 }, { "cite": "98 N.M. 51", "category": "reporters:state", "reporter": "N.M.", "year": 1982, "opinion_index": 0 }, { "cite": "97 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555063 ], "weight": 4, "pin_cites": [ { "page": "393" }, { "page": "499" }, { "page": "387" }, { "page": "493", "parenthetical": "a confidential relationship is found '\"whenever trust and confidence is reposed by one person in the integrity and fidelity of another' \"" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0383-01" ] } ], "analysis": { "cardinality": 1067, "char_count": 23754, "ocr_confidence": 0.707, "pagerank": { "raw": 1.0520655801526733e-07, "percentile": 0.5542083727661342 }, "sha256": "23b4e50717da4d1220bc9e7f7f43ef687c625b64e44288a0e4395566996fd432", "simhash": "1:bab56ebe1ade80e1", "word_count": 3771 }, "last_updated": "2023-07-14T17:50:53.788074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and HARTZ, JJ., concur." ], "parties": [ "In the Matter of the ESTATE OF Fred STROZZI, Deceased. Elsie BARBER, et al., PetitionersAppellees, v. Mary Elizabeth POUND and Mary Helen Charlene Olney, Respondents-Appellants." ], "opinions": [ { "text": "OPINION\nBOSSON, Judge.\nRespondents filed a motion for rehearing on July 12, 1995, after our opinion was filed. Although we have denied the motion for rehearing, our previous opinion filed on June 6, 1995, is withdrawn and the following opinion is substituted in its place.\nA jury verdict set aside the Will of Fred Strozzi because it was procured through undue influence. On appeal, we examine whether the trial court properly instructed the jury on elements of undue influence and lack of testamentary capacity. We affirm the verdict.\nFACTS\nIn June 1987, at the age of eighty-six, Strozzi inherited a $1 million ranch estate from his brother Allie Strozzi. Throughout his life Strozzi suffered from both physical and mental handicaps. There was testimony that Strozzi never proceeded beyond the mental age of 15 to 16 years old. The day after Allie\u2019s funeral, Respondents Mary Elizabeth Pound (Betty) and her daughter Mary Helen Charlene Olney (Sissy) visited Strozzi at his home. Betty was tangentially \u201crelated\u201d to Strozzi by marriage; the brother of Betty\u2019s father was married to Strozzi\u2019s sister. Betty and Sissy visited Strozzi at his house every day for the next three weeks and every other day thereafter for the next three or four months.\nIn August 1987, Petitioner Dean Thomas (Thomas), Strozzi\u2019s grandnephew, filed a civil complaint seeking a conservatorship for Strozzi. Strozzi resisted the appointment. Ultimately, Thomas and Strozzi reached a stipulated agreement, which recognized Strozzi as competent. During the conservatorship proceedings Strozzi disclosed that, only weeks after Allie\u2019s death, he had prepared a will devising his estate to a neighbor, Robert Nathan Hall.\nAround November 1987 Strozzi injured himself in a fall. Immediately thereafter, Betty, her husband Smokey Pound, and Sissy moved a trailer home next to Strozzi\u2019s house. Together the Pounds cleaned, cooked, and generally took care of Strozzi for the next several years until his death on March 26, 1992. On September 9, 1988, approximately fifteen months after Allie\u2019s death, Strozzi revoked his prior will to Hall and executed a new will devising the vast majority of his estate to Betty and Sissy. Strozzi never executed another will.\nAs co-personal representatives, Betty and Sissy offered Strozzi\u2019s Will for probate in informal proceedings. Petitioners filed for a formal testacy proceeding, seeking a declaration that the Will was void because it was the product of undue influence and because Strozzi lacked testamentary capacity. Petitioners were Strozzi\u2019s closest blood relatives and heirs at law, although they were only distantly related. At trial, the jury found that although Strozzi did have sufficient testamentary capacity to make a will, Strozzi was under the undue influence of Respondents when he executed this particular Will, and accordingly, the Will should be set aside.\nDISCUSSION\nJury Instruction Regarding Confidential Relationship\nRespondents\u2019 first allegation of error pertains to Jury Instruction No. 4 and the elements of undue influence, specifically the requirement of a confidential relationship. Jury Instruction No. 4 advised the jury:\nTo establish the claim of undue influence of the [Respondents] upon Fred Strozzi, the [Petitioners] must show:\n1. That the [Respondents] occupied, a position of trust and confidence in the mind of Fred Strozzi and \u2022\n2. That the [Respondents] used that position to unfairly and improperly influence Fred Strozzi to his injury, or to the injury of those persons he would have benefitted in the absence of the influence.\nALTERNATIVELY, [Petitioners] must show:\n[Respondents] unfairly and improperly influenced Fred Strozzi as to prevent him from exercising a free and understanding judgment when he executed his will.\nUndue influence, in order to make a will void, must be directly connected with its execution and must operate at the time it was made.\nRespondents argue that the language following \u201cALTERNATIVELY,\u201d erroneously allowed the jury to find undue influence without a confidential relationship.\nThe parties discussed this instruction when settling jury instructions. Respondents offered an instruction containing the first part of Jury Instruction No. 4, but without the alternative portion. The trial court was not certain that a confidential relationship was a prerequisite of undue influence, and the court properly sought guidance from both counsel. Counsel for Petitioners felt that a confidential relationship was not required; counsel for Respondents was indecisive. During the discussion, the trial court asked, \u201cWell, am I correct in saying that you have to show a confidential relationship to get undue influence?\u201d Both parties answered \u201cNo.\u201d Neither party advised the trial court unequivocally that a confidential relationship was required.\nEventually, Respondents directed the trial court to a definition of undue influence approved by this Court in In re Will of Ferrill, 97 N.M. 383, 393, 640 P.2d 489, 499 (Ct.App.1981), cert. quashed, 98 N.M. 51, 644 P.2d 1040 (1982), and that definition became the alternative portion added to Jury Instruction No. 4. Respondents continued to request that Jury Instruction No. 4 be limited to the part preceding the alternative portion, although without clearly articulating a reason. Respondents now argue that this addition to Jury Instruction No. 4 was error, because it allowed the jury to find undue influence without first finding a confidential relationship. We have substantial concerns about whether, in all fairness, Respondents effectively preserved the error they now claim on appeal. See, e.g., Gracia v. Bittner, 120 N.M. 191, 194-96, 900 P.2d 351, 354-56 (1995) (N.M.Ct.App.1995); see also Salinas v. John Deere Co., 103 N.M. 336, 707 P.2d 27, certs. quashed, 103 N.M. 287, 705 P.2d 1138 (1985). However, as we shall discuss, because we are confident this issue was inconsequential to Respondents at trial, we will proceed to discuss the claim.\nWe need not determine in this opinion whether a confidential relationship is an essential element of undue influence, such that it must actually be included in the jury instructions, or more a matter of evidence which, combined with other factors, tends to prove undue influence. We do note that a confidential relationship appears to be ubiquitous in our own case law and is present in the most recent cases. See, e.g., Lucero v. Lucero, 118 N.M. 636, 641-42, 884 P.2d 527, 532-33 (Ct.App.1994); Doughty v. Morris, 117 N.M. 284, 288-89, 871 P.2d 380, 384-85 (Ct.App.1994); In re Estate of Gonzales, 108 N.M. 583, 585-86, 775 P.2d 1300, 1302-03 (Ct.App.1988), cert. quashed, 108 N.M. 197, 769 P.2d 731 (1989). Abuse of a confidential relationship figures prominently in the discussions offered in various treatises and authorities. See, e.g., 2 Dan B. Dobbs, Law of Remedies \u00a7 10.3 (2d ed. 1993); 12 Samuel Williston, A Treatise on the Law of Contracts \u00a7 1625 (3d ed. 1968); Restatement (Second) of Contracts \u00a7 177 (1981). Although it may be theoretically possible to exercise undue influence in the absence of trust and confidence, see Restatement (Second) of Contracts \u00a7 177 emt. b, at 492, it would be the unusual circumstance. See SCRA 1986, 13-839 (Repl.1991) (including the element of an \u201cabuse of a close or special relationship\u201d in the uniform jury instruction on undue influence in contracts).\nFor purposes of this analysis, we assume, without deciding, that a confidential relationship is a necessary element of undue influence. However, the absence of that element from the instructions in this case does not necessarily result in reversible error. The trial court instructed the jury on the definition of a confidential relationship, which Respondents accepted without objection: \u201cA confidential relationship exists whenever trust and confidence is reposed by one person in the integrity and fidelity of another.\u201d Accordingly, by arguing now that it was reversible error not to include a confidential relationship in all aspects of Jury Instruction No. 4, Respondents are saying that the trial court should have required the jury to find as an essential element of undue influence that Strozzi reposed trust and confidence in the integrity and fidelity of Respondents.\nHowever, our review of the record and the evidence shows that the omission of this language could not have affected the verdict. We fail to discern any rational view of the evidence, and Respondents have not suggested any, under which the jury could have found undue influence pursuant to the alternative portion stated in Jury Instruction No. 4 without also finding that Strozzi reposed trust and confidence in the integrity and fidelity of Respondents. The entire thrust of Petitioners\u2019 case was that Respondents had ingratiated their way into Strozzi\u2019s confidence. Respondents did not argue to the jury that their relationship with Strozzi was not one of trust and confidence. This was a given, a nonissue below. If the jury did not adopt at least the gist of this theory, it could not, as far as we can tell, have rendered the verdict in this fashion. Therefore, even if we were to decide that Jury Instruction No. 4 erroneously omitted a specific reference to a confidential relationship, any such error was inconsequential and harmless. See Flores v. Baca, 117 N.M. 306, 314, 871 P.2d 962, 970 (1994); cf. Santillanes v. State, 115 N.M. 215, 223, 849 P.2d 358, 366 (1993). Perhaps the overwhelming evidence demonstrating a relationship of trust and confidence is one reason Respondents did not try harder to object to the alternative portion of Jury Instruction No. 4. At any rate, given our faith in the good sense and conscientiousness of the jury, we will not presume prejudicial error where all signs point to the contrary.\nRespondents also contend that Petitioners failed to prove a prima facie case of undue influence and that Respondents were therefore entitled to a directed verdict. We do not agree. The record reveals that Respondents\u2019 motion for directed verdict was immediately denied by the trial court. Respondents then proceeded with their case, thereby waiving any challenge to the sufficiency of the evidence up to that point. See Andrus v. Gas Co. of New Mexico, 110 N.M. 593, 595, 798 P.2d 194, 196 (Ct.App.), cert. denied, 110 N.M. 260, 794 P.2d 734 (1990); see also Board of Trustees of the Town of Las Vegas v. Montano, 82 N.M. 340, 481 P.2d 702 (1971). After the jury verdict, Respondents moved for a judgment notwithstanding the verdict, which was also denied. This motion preserved for appeal Respondent\u2019s challenge to the sufficiency of the evidence. The denial of a judgment notwithstanding the verdict is reviewed for substantial evidence. See Page & Wirtz Constr. Co. v. Solomon, 110 N.M. 206, 209, 794 P.2d 349, 352 (1990).\nRespondents do not contest that the verdict must be affirmed if Petitioners established the existence of a confidential relationship and certain suspicious circumstances. See Doughty, 117 N.M. at 288, 871 P.2d at 384 (\u201cA presumption of undue influence arises when a confidential or fiduciary relationship exists and other suspicious circumstances are shown.\u201d). There is substantial evidence, close in time to the creation of the Will, which is highly probative of both a confidential relationship and its abuse. Perhaps the strongest corroborative evidence of a confidential relationship is Betty\u2019s own testimony regarding their continual presence at Strozzi\u2019s house and in all aspects of Strozzi\u2019s life in the days, months, and years after Allie\u2019s death. Almost from the beginning, Respondents wrote checks on Strozzi\u2019s behalf; Strozzi would sign his name on a blank check, and Respondents would fill out the remainder. After the execution of Strozzi\u2019s Will, this practice evolved to the point where Smokey Pound even had his own signature included on Strozzi\u2019s bank account, and he executed the checks on Strozzi\u2019s behalf. Strozzi confirmed the underpinnings of a confidential relationship when he stated at his deposition during the conservatorship proceedings that the Pounds were the \u201cbest neighbor[s] that I had\u201d and that the Pounds \u201cdo honest work. I trust them.\u201d See Doughty, 117 N.M. at 289, 871 P.2d at 385 (confidential relationship found where son lived with mother for last five years of her life and mother confided her most crucial affairs to him); Ferrill, 97 N.M. at 387, 640 P.2d at 493 (a confidential relationship is found \u2018\u201cwhenever trust and confidence is reposed by one person in the integrity and fidelity of another\u2019 \u201d), citing 94 C.J.S. Wills \u00a7 230, at 1078 (1956).\nIn addition to a confidential relationship, there was evidence of the kind of suspicious circumstances that create a rebuttable presumption of undue influence for the jury\u2019s consideration. A $1 million ranch estate is an extraordinary amount of consideration for the work Respondents performed over only the last few years of Strozzi\u2019s life, or so the jury could have concluded in light of the evidence. Before Allie\u2019s death the Pounds had visited Strozzi at his house only once in six years, yet after Strozzi inherited the ranch, they were there constantly. Furthermore, Mike Schoonover, Strozzi\u2019s grandnephew, testified that while visiting Strozzi in July of 1987, he overheard a conversation in which Betty urged Strozzi to sign over a portion of his estate to her. Schoonover further testified that he saw get-well cards from the Pounds addressed to \u201cUncle Fred.\u201d Schoonover found a photo album which contained pictures he did not recognize. When asked about the pictures, Strozzi responded that the pictures were his \u201cfamily\u201d and that he was their \u201cuncle.\u201d The pictures were of the Pounds. It is undisputed that Strozzi was not the Pounds\u2019 uncle. There was also evidence that Strozzi became increasingly isolated, even from old friends and neighbors, the more he grew dependent on the care of Respondents.\nRespondents make much of the lack of direct evidence showing that Strozzi\u2019s advanced age or disability made him particularly susceptible to undue influence. Respondents cite Lucero and Gonzales, two recent cases from this Court which reversed judicial findings of undue influence because there was no specific evidence connecting decedent\u2019s age or poor health to any actual mental infirmity. However, old age or weakened condition constitutes only one of numerous \u201csuspicious\u201d circumstances which can support a finding of undue influence. See Doughty, 117 N.M. at 288-89, 871 P.2d at 384-85. Jury Instruction No. 5 correctly instructed the jury as to these other suspicious circumstances, any one of which was sufficient to support a presumption of undue influence. Thus, even if we accept Respondents\u2019 contention that Petitioners failed to establish that Strozzi suffered from an infirmity that made him particularly susceptible to undue influence, the additional factors noted in Jury Instruction No. 5 distinguish both Lucero and Gonzales. Petitioners did not rely solely on old age and infirmity to make their case.\nInstruction on the \u201cNatural Object of One\u2019s Bounty\u201d\nThe second alleged error in regard to the instructions occurred during jury deliberations, when the jury sent a message requesting that the trial court define the meaning of \u201cthe natural objects of his bounty,\u201d as set forth in Jury Instruction No. 8 on testamentary capacity: \u201c[t]o establish the claim of [Petitioners] that Fred Strozzi lacked testamentary capacity, [Petitioners] must show that at the time of making his Will, Fred Strozzi ... did not know the natural objects of his bounty.\u201d When this request for clarification arrived from the jury, Respondents requested no response, arguing that this was a factual determination for the jury to decide. Nonetheless, the trial court did advise the jury that:\nThe natural objects of Fred Strozzi\u2019s bounty are ordinarily those persons designated to inherit from him in the absence of a will. However, that term does not necessarily mean that he should know and recognize every relative who is entitled to inherit from him under the existing laws of descent.\nThe jury ultimately found that Strozzi did have the necessary mental capacity to make his Will and by inference that Strozzi knew who were the \u201cnatural objects of his bounty.\u201d Respondents assert that this definition was erroneous because no New Mexico case holds that a mere collateral relative, like Petitioners, are by that relationship alone the \u201cnatural objects of a person\u2019s bounty.\u201d See generally L.S. Tellier, Annotation, Instructions, in will contest, defining natural objects of testator\u2019s bounty, 11 A.L.R.2d 731 (1950); 28 Words and Phrases, \u201cNatural Object of Testator\u2019s Bounty\u201d (1955). Respondents also maintain that the trial court\u2019s definition wrongly required them to rebut a presumption that the Petitioners were the \u201cnatural objects of Strozzi\u2019s bounty.\u201d The simple response to Respondents\u2019 argument is that the point is moot, because the jury found in Respondents\u2019 favor on this issue.\nHowever, in their reply brief and again at oral argument, Respondents attempt to connect this point to undue influence and not just testamentary capacity. Respondents argue that the trial court\u2019s definition supplementing Jury Instruction No. 3 also confused the jury in regard to Jury Instruction No. 5, which included a bequest that is \u201cunnatural and unjust\u201d in the itemization of suspicious circumstances sufficient to create a presumption of undue influence. Respondents reason that if the trial court incorrectly advised the jury that Petitioners were included in the natural objects of Strozzi\u2019s bounty, then the court essentially instructed the jury that a bequest to anyone other than Plaintiffs was \u201cunnatural or unjust.\u201d Accordingly, in Respondents\u2019 view, the jury had no choice but to find undue influence.\nAgain, we disagree. It would be a stretch to assume that the jury took the definition of \u201cnatural objects of his bounty\u201d from Jury Instruction No. 3, regarding testamentary capacity, and misapplied it to the definition of \u201cunnatural and unjust\u201d in Jury Instruction No. 5 regarding undue influence. See Gonzales v. Sansoy, 102 N.M. 136, 137, 692 P.2d 522, 523 (1984) (presumptions are in favor of verdicts and reviewing court will indulge all reasonable inferences in support of verdicts); cf. Green v. Watson, 224 Cal.App.2d 184, 36 Cal.Rptr. 362, 368 (1964) (reviewing court is not permitted to seek out possible and strained construction of words used in instruction and infer that jury followed the distorted interpretation). The two phrases are different; they are located in different instructions, and they are directed towards different claims in the case. Respondents fail to demonstrate any likelihood that the jury was confused by this definition, and in fact Respondents did not argue this point to the trial court at the time the matter was under consideration. The verdict appears free from any inherent ambiguity. Respondents\u2019 argument would force this Court into impermissible speculation, and we decline to do so.\nNotice\nFinally, Respondents claim error from a failure in the probate proceedings to provide statutory notice to Hall as a principal beneficiary of the prior will and one entitled to such notice under law. See NMSA 1978, \u00a7 45-3-408 (Repl.Pamp.1993). Section 45-3-403 states that upon commencement of a formal testacy proceeding:\nNotice shall be given to the following persons: the surviving spouse, children and other heirs of the decedent (who would have taken had the decedent died intestate); the devisees and personal representatives named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere; and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated.\nIn this case, this notice statute does not appear to address Hall\u2019s situation as the devisee of a prior but revoked will which has not been offered for informal or formal probate. The closest provision of the statute appears to be that \u201c[njotice may be given to other persons,\u201d which by its terms is permissive, not mandatory, notice. Respondents cite to a Comment to the Uniform Probate Code which is identical to Section 45-3-403(B). The Comment states: \u201c[njotice requirements extend also to persons named in a will that is known to the petitioners to exist, irrespective of whether it has been probated or offered for formal or informal probate, if their position may be affected adversely by granting of the petition.\u201d Uniform Probate Code \u00a7 3-403, 8 U.L.A. 275 (1983). The comment continues, however, that there is no \u201crigid statutory requirement relating to such persons.\u201d In any event, even if we were to assume that this Comment applied, it would not help Respondents\u2019 cause. Hall was not \u201cadversely affected\u201d by the probate proceedings. To the contrary, he stood to benefit because voiding the second will would only revive the first will and his interest as the primary beneficiary. Furthermore, any objection must be voiced by Hall and not a third party. In this case, Hall has not objected and Respondent cannot make this assertion for him.\nFinally, on March 31, 1994, Petitioners entered into an Amended Stipulation of Settlement with Hall, whereby Hall abandoned any claims he might have under any of the Strozzi wills and conveyed those rights to Petitioners. As a result, Hall no longer has an interest in Strozzi\u2019s estate. The issue is now moot.\nCONCLUSION\nThe judgment on the jury verdict setting aside the Will of Fred Strozzi is affirmed.\nIT IS SO ORDERED.\nALARID and HARTZ, JJ., concur.\n. At oral argument, Petitioners' counsel suggested that a stranger pointing a gun to testator's head causing the testator to devise his estate to the stranger was an example of undue influence without a confidential relationship. We disagree. This would be duress, rather than undue influence. See 2 Dobbs, supra, \u00a7 10.2(3); see also William J. Bowe & Douglas H. Parker, 1 Page on Wills \u00a7 15.4, at 722 (1960 & Cum.Supp. 1995) (\"A suggestion by one who occupies a dominant position in the relation of trust and confidence, such as an attorney, may amount to undue influence, although such a suggestion, if made by a stranger, would not amount to undue influence.\u201d (footnotes omitted)).\n.Instruction 5 states:\nIf you find that a confidential relationship existed between the decedent and [Respondents] and that:\n1. Fred Strozzi was old, in a weakened physical or mental condition; or\n2. There was a lack of consideration given by the [Respondents] for the bequest; or\n3. The bequest is unnatural or unjust; or\n4. The [Respondents] participated in procuring the will; or\n5. The [Respondents] dominated Fred Strozzi; or\n6. The [Respondents] unduly profited from the will,\nYou may find that the will was procured by the undue influence of [Respondents].\nA confidential relationship exists whenever trust and confidence is reposed by one person in the integrity and fidelity of another.", "type": "majority", "author": "BOSSON, Judge." } ], "attorneys": [ "Kenneth B. Wilson, Roswell, for Petitioners-Appellees.", "Jack Smith, Smith & Smith Law Offices, P.A., Albuquerque, for Respondents-Appellants." ], "corrections": "", "head_matter": "903 P.2d 852\nIn the Matter of the ESTATE OF Fred STROZZI, Deceased. Elsie BARBER, et al., PetitionersAppellees, v. Mary Elizabeth POUND and Mary Helen Charlene Olney, Respondents-Appellants.\nNo. 15454.\nCourt of Appeals of New Mexico.\nAug. 21, 1995.\nCertiorari Denied Sept. 22, 1995.\nKenneth B. Wilson, Roswell, for Petitioners-Appellees.\nJack Smith, Smith & Smith Law Offices, P.A., Albuquerque, for Respondents-Appellants." }, "file_name": "0541-01", "first_page_order": 579, "last_page_order": 585 }