{ "id": 4002388, "name": "In the Matter of the Estate of Gregoria C de Baca, Deceased. Edwina CHAPMAN and Gilbert C de Baca, Plaintiffs-Appellants/Cross-Appellees, v. Vincent VARELA, Defendant-Appellee/Cross-Appellant. and In the Matter of the Estate of Gregoria C de Baca, Deceased. Edwina Chapman and Gilbert C de Baca, Plaintiffs-Appellees, v. Viola Varela, Defendant-Appellant", "name_abbreviation": "Chapman v. Varela", "decision_date": "2008-06-25", "docket_number": "Nos. 27,069, 27,164", "first_page": "709", "last_page": "730", "citations": [ { "type": "official", "cite": "144 N.M. 709" }, { "type": "parallel", "cite": "2008-NMCA-108" }, { "type": "parallel", "cite": "191 P.3d 567" } ], "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": "113 N.M. 45", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723305 ], "weight": 2, "pin_cites": [ { "page": "48" }, { "page": "1131" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0045-01" ] }, { "cite": "2001-NMCA-082", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183132 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 54" }, { "page": "\u00b6 55" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0100-01" ] }, { "cite": "2004-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224598 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0647-01" ] }, { "cite": "117 N.M. 761", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552583 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "767", "parenthetical": "emphasis omitted" }, { "page": "573", "parenthetical": "emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0761-01" ] }, { "cite": "2005-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2551085 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0283-01" ] }, { "cite": "2007-NMCA-109", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692537 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0391-01" ] }, { "cite": "2006-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2541686 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 40-41" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0235-01" ] }, { "cite": "2007-NMCA-007", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670928 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0879-01" ] }, { "cite": "117 N.M. 82", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552563 ], "weight": 2, "pin_cites": [ { "page": "86" }, { "page": "1311" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0082-01" ] }, { "cite": "2007-NMCA-088", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692064 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 27" }, { "page": "\u00b6 42" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0346-01" ] }, { "cite": "2003-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15762 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0114-01" ] }, { "cite": "2003-NMCA-029", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15855 ], "weight": 9, "pin_cites": [ { "page": "\u00b6\u00b6 11, 44" }, { "page": "\u00b6\u00b6 11, 44" }, { "page": "\u00b6\u00b6 11, 44" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0389-01" ] }, { "cite": "2007-NMSC-047", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3691143 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 30" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0150-01" ] }, { "cite": "1998-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 17424 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6\u00b6 22, 28" }, { "page": "\u00b617" }, { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0512-01" ] }, { "cite": "100 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588533 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "765", "parenthetical": "\"We have long held that to present an issue on appeal for review, an appellant must submit argument and authority as required by rule.\"" }, { "page": "1330", "parenthetical": "\"We have long held that to present an issue on appeal for review, an appellant must submit argument and authority as required by rule.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0764-01" ] }, { "cite": "110 N.M. 478", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716968 ], "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "emphasis omitted" }, { "parenthetical": "emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0478-01" ] }, { "cite": "103 N.M. 716", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711411 ], "weight": 8, "year": 1986, "pin_cites": [ { "page": "720" }, { "page": "1382" }, { "page": "719" }, { "page": "1381", "parenthetical": "alterations in original" }, { "page": "719" }, { "page": "1381" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0716-01" ] }, { "cite": "2003-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15599 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 74" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0373-01" ] }, { "cite": "2006-NMCA-080", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670522 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0068-01" ] }, { "cite": "116 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727683 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "414" }, { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0412-01" ] }, { "cite": "75 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5374727 ], "weight": 11, "year": 1965, "pin_cites": [ { "page": "283-85" }, { "page": "117-18" }, { "page": "283-84" }, { "page": "117" }, { "page": "284" }, { "page": "117" }, { "page": "285" }, { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nm/75/0274-01" ] }, { "cite": "121 N.M. 58", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566603 ], "weight": 2, "pin_cites": [ { "page": "62" }, { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0058-01" ] }, { "cite": "117 N.M. 284", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552658 ], "weight": 10, "pin_cites": [ { "page": "289-90" }, { "page": "385-86" }, { "page": "286-87" }, { "page": "382-83" }, { "page": "286" }, { "page": "382" }, { "page": "287, 290" }, { "page": "383, 386" }, { "page": "290" }, { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0284-01" ] }, { "cite": "97 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555063 ], "weight": 2, "pin_cites": [ { "page": "387-88" }, { "page": "493-94" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0383-01" ] }, { "cite": "108 N.M. 583", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592777 ], "weight": 11, "pin_cites": [ { "page": "585" }, { "page": "1302" }, { "page": "585-86" }, { "page": "1302-03", "parenthetical": "observing that the testator \"was elderly and sick, but this is not unusual or reason to cause suspicion\"" }, { "page": "1303" }, { "page": "586" }, { "page": "1303", "parenthetical": "concluding that a beneficiary could not be said to have participated in procuring a will when his actions were not necessary to prove due execution" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0583-01" ] }, { "cite": "100 N.M. 305", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588573 ], "weight": 4, "pin_cites": [ { "page": "311" }, { "page": "1106" }, { "page": "310" }, { "page": "1105", "parenthetical": "considering evidence that the testator had previously stated \"that it was his intention to leave his property equally to both\" parties" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0305-01" ] }, { "cite": "79 N.M. 540", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2736059 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "547" }, { "page": "968" } ], "opinion_index": 0, "case_paths": [ "/nm/79/0540-01" ] }, { "cite": "103 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711339 ], "weight": 2, "pin_cites": [ { "page": "11" }, { "page": "1031" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0005-01" ] }, { "cite": "118 N.M. 614", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563546 ], "weight": 2, "pin_cites": [ { "page": "615-16" }, { "page": "506-07" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0614-01" ] }, { "cite": "108 N.M. 332", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592896 ], "weight": 2, "pin_cites": [ { "page": "335" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0332-01" ] }, { "cite": "2007-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669325 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0755-01" ] }, { "cite": "81 Minn. L.Rev. 571", "category": "journals:journal", "reporter": "Minn. L. Rev.", "weight": 2, "year": 1997, "pin_cites": [ { "page": "577" }, { "page": "601" } ], "opinion_index": 0 }, { "cite": "1998-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834293 ], "weight": 38, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 28" }, { "page": "\u00b6 8" }, { "page": "\u00b6 9" }, { "page": "\u00b6 11" }, { "page": "\u00b6 8" }, { "page": "\u00b6 24" }, { "page": "\u00b6 30" }, { "page": "\u00b6 25" }, { "page": "\u00b6 14" }, { "page": "\u00b6 21" }, { "page": "\u00b6\u00b6 29-30" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0269-01" ] }, { "cite": "113 N.M. 105", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723310 ], "weight": 8, "year": 1991, "pin_cites": [ { "page": "110" }, { "page": "910" }, { "page": "111" }, { "page": "911" }, { "page": "110" }, { "page": "910" }, { "page": "111" }, { "page": "911" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0105-01" ] }, { "cite": "57 U. Pitt. L.Rev. 841", "category": "journals:journal", "reporter": "U. Pitt. L. Rev.", "year": 1996, "pin_cites": [ { "page": "843-44" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 2060, "char_count": 68360, "ocr_confidence": 0.686, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.3027325145211169 }, "sha256": "c645003d53ddd14063e0aa7f36e300b78e58966aef8cfa124fe0befed7204f3f", "simhash": "1:8f2a70267ace9864", "word_count": 11210 }, "last_updated": "2023-07-14T22:37:29.378104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD and MICHAEL D. BUSTAMANTE, Judges." ], "parties": [ "In the Matter of the Estate of Gregoria C de Baca, Deceased. Edwina CHAPMAN and Gilbert C de Baca, Plaintiffs-Appellants/Cross-Appellees, v. Vincent VARELA, Defendant-Appellee/Cross-Appellant. and In the Matter of the Estate of Gregoria C de Baca, Deceased. Edwina Chapman and Gilbert C de Baca, Plaintiffs-Appellees, v. Viola Varela, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCASTILLO, Judge.\n{1} In this case, we are required to consider whether the trial court properly concluded, by clear and convincing evidence, that a will was the product of undue influence. After reviewing the record, we hold that the party challenging the will did not establish a prima facie case of undue influence. We also consider whether the trial court properly granted a claim for slander of title and denied a claim for malicious abuse of process and whether the trial court properly handled attorney fees, costs, nominal damages, post-judgment interest, and actual damages. We affirm in part and reverse in part, and we remand for further proceedings.\nI. BACKGROUND\n{2} Gregoria C de Baca died on May 11, 2004. She was survived by nine children: Rosina, Rudy, Viola, Simon, Tom, Daniel, Gilbert, Edwina, and Donna. On July 8, 2004, Gilbert and Edwina filed an application for informal appointment of personal representatives. The application asserts that Gregoria died intestate, and it requests that the trial court appoint Edwina and Gilbert to be the personal representatives of Gregoria\u2019s estate. On July 12, 2004, the trial court entered an order for informal probate of Gregoria\u2019s estate and appointed Edwina and Gilbert to be the personal representatives.\n{3} Edwina and Gilbert also filed a complaint against Viola and her son, Vincent, and sought to set aside conveyances of real property from Gregoria to Viola and from Gregoria to Vincent. The complaint accused Viola and Vincent of either forging Gregoria\u2019s signature on the deeds or misleading Gregoria as to the effect of the deeds or exerting undue influence over Gregoria to induce her to sign the deeds. In the alternative, the complaint alleged that Gregoria suffered from \u201cphysical and/or mental illness and weakness of the mind.\u201d Edwina and Gilbert also filed a notice of lis pendens on July 29, 2004, and encumbered the five properties that Gregoria purportedly deeded to Viola and the one property that Gregoria allegedly sold to Vincent.\n{4} On July 30, 2004, Viola filed a petition for formal probate of Gregoria\u2019s will and for the removal of Edwina and Gilbert as personal representatives of the estate. Viola\u2019s petition states that Gregoria\u2019s will nominated Viola to be the personal representative of the estate. After a hearing, the trial court revoked its earlier order and formally appointed Viola as the personal representative. The trial court also consolidated the probate proceeding with the complaint to set aside the conveyances.\n{5} On August 25, 2004, Viola and Vincent filed an answer to the complaint, as well as counterclaims. The counterclaims accused Edwina and Gilbert of slander of title, negligent and fraudulent misrepresentation, and abuse of process. The counterclaims also demanded punitive damages. On October 7, 2004, an amended response to the probate proceedings was filed, which named Gilbert, Edwina, Rudy, Daniel, Rosina, and Donna (Siblings) as respondents. Siblings withdrew their complaint to set aside the deed from Gregoria to Vincent on February 3, 2005. On April 7, 2005, Edwina and Gilbert released Vincent from the notice of lis pendens and discharged the encumbrance from Vincent\u2019s property.\n{6} The bench trial began on April 25, 2005, and the trial court received evidence regarding (1) the application for informal appointment of a personal representative, (2) the petition for formal probate of the will, (3) the removal of previously appointed personal representatives and the formal appointment of a personal representative, (4) the response to the petition for formal probate of the will, (5) the petition challenging the will, (6) the complaint to set aside the conveyances of property from Gregoria to Viola and for damages for fraud, and (7) Viola\u2019s and Vincent\u2019s counterclaims. The trial continued on April 26, May 9, 10, and 11, and September 6, 7, and 8. On September 8, the trial court ruled from the bench that \u201cViola Varela clearly and convincingly exercised undue influence over her mother.\u201d The court set aside the will and the deeds, which conveyed property to Viola. The trial court did not rule at that time on Viola\u2019s and Vincent\u2019s counterclaims, but in the judgment issued on September 25, the court granted Vincent\u2019s claim for slander of title and dismissed the remaining counterclaims. It appears from the ruling and from later documents that the trial court found slander of title only against Edwina and Gilbert, not against Siblings. The court further removed Viola as the personal representative of the estate and ordered that the estate be administered intestate. After the trial court ruled from the bench, Viola and Vincent moved for, among other things, a partial stay of the probate proceeding in order to prevent the sale and distribution of Gregoria\u2019s property until after Viola and Vincent had an opportunity to appeal the trial court\u2019s determinations. The court granted the motion for a partial stay of the probate proceeding.\n{7} On October 11, 2005, Vincent filed a motion with the trial court for a ruling on damages related to slander of title. No ruling followed the motion, and on March 27, 2006, Vincent filed a post-judgment request for an evidentiary hearing on damages pursuant to the final judgment. After the hearing, the trial court issued an order, which granted Vincent $16,731.44 in attorney fees as special damages and $12,000 in nominal damages. In addition, the trial court set a post-judgment interest rate of eight and three-fourths percent. Vincent submitted a bill of costs at a later date, and after another hearing on that issue, the trial court awarded Vincent costs in the amount of $5,355.05.\n{8} Viola appeals the trial court\u2019s decision to set aside the deeds and the will, based on a claim of undue influence. Edwina and Gilbert also appeal the trial court\u2019s finding of slander of title and the determination of damages for that claim. Vincent cross-appeals and challenges the trial court\u2019s dismissal of his claim of malicious abuse of process, the amount of the award for attorney fees, and the rate used to calculate the amount of post-judgment interest. The appeals were consolidated by this Court, and we address each appeal in turn.\nII. DISCUSSION\nA. Viola\u2019s Appeal\n{9} In order to provide context for this discussion, we provide a brief summary of the uncontested facts regarding the will and the five deeds. In September 2000, Gregoria suffered a stroke. During October or November 2000, Gregoria and Viola spoke with Lorenzo Dominguez, a surveyor, about preparing new deeds, which would transfer Gregoria\u2019s five pieces of property to Viola. In December 2000, Viola\u2019s daughter, Victoria, typed up the first will. Victoria testified that she and Gregoria sat together at a kitchen island while Viola made dinner in the same room. Victoria further testified that Gregoria dictated the words in the will and that Viola did not participate, unless Gregoria used a Spanish phrase that Victoria did not understand.\n{10} On January 25, 2001, Gregoria was again admitted to the hospital, this time for an ankle fracture. She was released on January 28 and was almost immediately readmitted for pneumonia. On February 2, Gregoria was released from the hospital again. Also on February 2, Robert J. Clifford at Berardinelli Family Funeral Services notarized the five warranty deeds and the first will, which was un-witnessed. The five deeds were recorded more than five months later, on July 24, 2001. On August 28, 2002, Gregoria executed a second will, which was drawn up by an attorney, Ruben Rodriguez. There is no question that this will was validly executed. This will left $1 to Gilbert, Edwina, Rosina, Tom, Simon, Daniel, Rudy, and Donna. The remainder of Gregoria\u2019s estate went to Viola through a residuary clause.\n{11} With those facts as background, we turn to Viola\u2019s arguments on appeal. First, Viola contends that the trial court\u2019s judgment was not supported by clear and convincing evidence and that the deeds and the will were not the products of undue influence. Second, Viola insists that setting aside the deeds and the will would violate public policy because it \u201cwould deprive an older person of her free will to dispose of her assets in the manner in which she chooses.\u201d Since we conclude that the will was not the product of undue influence, we do not address the validity of the deeds.\n{12} For more than two hundred years, the doctrine of undue influence has reflected \u201csome of society\u2019s most deeply held values about obligations, family, property, and inheritance.\u201d Lawrence A. Frolik, The Biological Roots of the Undue Influence Doctrine: What\u2019s Love Got to Do with It?, 57 U. Pitt. L.Rev. 841, 843-44 (1996). \u201cThe underlying theory of the doctrine [of undue influence] is that the donor is induced by various means to execute an instrument that, in reality, is the will of another substituted for that of the donor.\u201d Montoya v. Torres, 113 N.M. 105, 110, 823 P.2d 905, 910 (1991). \u201cUndue influence exists when [the] testator\u2019s volition at the time of [the] testamentary act was controlled by another and ... the resulting will was not the result of the free exercise of judgment and choice.\u201d In re Estate of Gersbach, 1998-NMSC-013, \u00b6 8, 125 N.M. 269, 960 P.2d 811 (internal quotation marks and citation omitted). The purpose of the doctrine is to protect the intent of the testator; however, often \u201c[t]he difficulty of proof arises from the fact that the will apparently carries out the wishes of the testator.\u201d Frolik, supra, at 851.\n{13} Undue influence operates to invalidate an otherwise valid testamentary document. For this reason, scholars criticize the doctrine because it does not truly protect the intent of the testator but, instead, \u201cprotects] the testator\u2019s biological family from disinheritance.\u201d Ray D. Madoff, Unmasking Undue Influence, 81 Minn. L.Rev. 571, 577 (1997). In some cases, \u201cthe doctrine can ... deny freedom of testation for some individuals irrespective of the existence of substantial evidence that their will[s] represented their true wishes.\u201d Id. at 601. In order to protect testamentary freedom, our Supreme Court has instructed that although the courts may question a testator\u2019s decisions and question whether those decisions were unfair or unjust, \u201csuch questions do not require an answer,\u201d unless the evidence presented justifies \u201can inference that the gift was the result of improperly exerted influence.\u201d In re Estate of Gersbach, 1998-NMSC-013, \u00b6 28, 125 N.M. 269, 960 P.2d 811. A testator\u2019s \u201cmotive or reasons need not be identified and proved.\u201d Id. Instead, \u201csuch evidence must do more than raise a suspicion. It must amount to proof, and such evidence has the force of proof only when circumstances are proven which are inconsistent with the claim that the will was the spontaneous act of the alleged testator.\u201d 1 Bancroft\u2019s Probate Practice \u00a7 210, at 518 (2d ed. 1950).\n{14} New Mexico has not \u201cstate[d] a legal definition of undue influence.\u201d In re Estate of Gersbach, 1998-NMSC-013, \u00b6 8, 125 N.M. 269, 960 P.2d 811 (internal quotation marks and citation omitted). Instead, a party contesting a conveyance must establish a prima facie case and show (1) that a confidential or fiduciary relationship existed between the testator and the beneficiary and (2) that suspicious circumstances existed. Id. \u00b6\u00b68-9. A presumption of undue influence arises if the contesting party successfully establishes the prima facie case. Id. \u00b6 9. However, the inquiry does not end there. Once the presumption is raised, the proponent of the will may still be able to rebut the presumption. Id. \u201cEvidence sufficient to rebut the presumption must at least balance the prima facie showing of undue influence.\u201d Montoya, 113 N.M. at 111, 823 P.2d at 911.\n{15} Undue influence must be established by clear and convincing evidence. In re Estate of Gersbach, 1998-NMSC-013, \u00b6 9, 125 N.M. 269, 960 P.2d 811. We will consider the evidence in the light most favorable to the prevailing party, id. \u00b6 10, but we also bear in mind that \u201c[c]lear and convincing evidence is evidence that instantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder\u2019s mind is left with an abiding conviction that the evidence is true.\u201d In re Locatelli, 2007-NMSC-029, \u00b6 7, 141 N.M. 755, 161 P.3d 252 (second alteration in original) (internal quotation marks and citation omitted). However, \u201c[e]ven in a case involving issues that must be established by clear and convincing evidence, it is for the finder of fact, and not for reviewing courts, to weigh conflicting evidence and decide where the truth lies.\u201d State ex rel. Dept. of Human Services v. Carol W., 108 N.M. 332, 335, 772 P.2d 366, 369 (Ct.App.1989). But conflicting evidence cannot be based on argument of counsel that amounts to nothing more than speculation and conjecture. See State v. Benton, 118 N.M. 614, 615-16, 884 P.2d 505, 506-07 (Ct.App.1994). We begin by considering whether a confidential relationship existed between Viola and Gregoria.\n1. Confidential or Fiduciary Relationship\n{16} \u201cFor purposes of undue influence, in New Mexico, [a] confidential or fiduciary relationship exists when one person places trust and confidence in the integrity and fidelity of another.\u201d In re Estate of Gersbach, 1998-NMSC-013, \u00b6 11, 125 N.M. 269, 960 P.2d 811 (alteration in original) (internal quotation marks and citation omitted). The trial court found that \u201c[a] confidential/fiduciary relationship existed between Gregoria C de Baca and Viola Varela.\u201d Viola acknowledges that \u201cthere may have been\u201d a confidential relationship between herself and her mother. As Siblings point out, Viola and Gregoria shared a joint checking account, the bank used Viola\u2019s mailing address, Viola attended most of Gregoria\u2019s doctor\u2019s appointments, Viola was with Gregoria almost every day, and Viola took Gregoria to have the will prepared. We conclude that there was substantial evidence to support the trial court\u2019s finding that Viola and Gregoria shared a confidential relationship. See id. \u00b6 12 (finding a confidential relationship because of the following: the donor and the donee were close friends, they spoke on the phone often, the donee payed minimal rent without a written lease, and the donee received loans from the donor without any schedule for repayment). We now turn to the record to evaluate whether suspicious circumstances existed surrounding the will.\n2. Suspicious Circumstances\n{17} Suspicious circumstances include\n(1) old age and weakened physical or mental condition of [the] testator; (2) lack of consideration for the bequest; (3) unnatural or unjust disposition of the property; (4) participation of [the] beneficiary in procuring the gift; (5) domination or control over the donor by a beneficiary; and (6) secrecy, concealment, or failure to disclose the gift by a beneficiary.\nMontoya, 113 N.M. at 110, 823 P.2d at 910. \u201cThis is not an exhaustive list, nor is it a list of circumstances that are always suspicious. Furthermore, the presence of any of these circumstances is not in itself dispositive.\u201d In re Estate of Gersbach, 1998-NMSC-013, \u00b6 8, 125 N.M. 269, 960 P.2d 811. The issue is whether the testator\u2019s intent was improperly influenced by another person. We consider the existence of suspicious circumstances not as ends in themselves but as clues in discovering the testator\u2019s intent. This Court has previously acknowledged that \u201c[w]here the testamentary intent of the maker of a document is uncertain or doubtful the fact finder must determine the intention of the maker from all of the evidence.\u201d Benton v. Albuquerque Nat\u2019l Bank, 103 N.M. 5, 11, 701 P.2d 1025, 1031 (Ct.App.1985). We observe that the trial court made a finding that \u201c[t]he testimony of Viola Varela was impeached at trial,\u201d and we will therefore disregard her testimony. See Galvan v. Miller, 79 N.M. 540, 547, 445 P.2d 961, 968 (1968). The trial court made findings regarding the individual suspicious circumstances, and we address them individually.\na. Old Age or Weakened Mental Condition\n{18} We note at the outset that \u201cissues of mental capacity and undue influence are separate and distinct.\u201d Roybal v. Morris, 100 N.M. 305, 311, 669 P.2d 1100, 1106 (Ct.App.1983). This Court examines a testator\u2019s mental and physical conditions for evidence that those conditions exposed the testator to the undue influence of others. See In re Estate of Gonzales, 108 N.M. 583, 585, 775 P.2d 1300, 1302 (Ct.App.1988). The trial court made the following findings regarding Gregoria\u2019s mental and physical health:\n6. In the last few years of her life, Gregoria C de Baca suffered several medical illnesses including hip replacements on both sides, a st[r]oke, a broken ankle, a broken elbow, a broken femur, pneumonia, high blood pressure, congestive heart failure and hearing loss.\n7. In [her] last few years Gregoria C de [B]aca also suffered from age[-]related and stroke[-]related loss of cognitive functioning and memory loss.\nAlthough there was evidence at trial to support these findings, we conclude that the findings do not support an inference of suspicious circumstances regarding Gregoria\u2019s susceptibility to influence because both findings relate to Gregoria\u2019s general decline after her stroke. \u201cNo New Mexico ease has based a presumption of undue influence on the fact that the testator was elderly without evidence that the testator\u2019s age had affected his or her mental ability.\u201d In re Estate of Gonzales, 108 N.M. at 585-86, 775 P.2d at 1302-03 (observing that the testator \u201cwas elderly and sick, but this is not unusual or reason to cause suspicion\u201d). There is no evidence in the record or the findings that Gregoria\u2019s old age and declining health made her particularly susceptible to Viola\u2019s influence. Cf. In re Will of Ferrill, 97 N.M. 383, 387-88, 640 P.2d 489, 493-94 (Ct.App.1981) (finding suspicious circumstances when a doctor testified that the testator\u2019s medical condition made her susceptible to influence). We therefore hold that there was insufficient evidence to justify an inference that either Gregoria\u2019s age or her health is a suspicious circumstance.\nb. Unnatural or Unjust Disposition\n{19} An unnatural devise\nis one in which the testator leaves a portion of his or her estate to someone not the natural object of one\u2019s bounty, someone to whom the testator would not have been expected to devise his property. A \u201cnatural disposition\u201d has been defined as one \u201cwhich provides for a testator\u2019s heirs at law....\u201d\nIn re Estate of Gersbach, 1998-NMSC-013, \u00b6 24, 125 N.M. 269, 960 P.2d 811 (citations omitted). The trial court found that \u201c[t]he [l]ast [w]ill [a]nd [t]estament which gave all of Gregoria C de Baca\u2019s substantial estate to Viola Varela and essentially nothing to her remaining eight children was an unusual and unnatural disposition.\u201d The devise in the present case does not fit easily into the traditional definition of an unnatural gift because although Viola is a natural object of Gregoria\u2019s bounty, so were the other eight children, who were effectively disinherited. The estate was not equally distributed among Gregoria\u2019s children, as would have happened had Gregoria died intestate. However, a valid will cannot be set aside based merely on evidence that the testator did not provide for her heirs at law in the manner provided by the intestacy statutes. See Madoff, supra, at 590-91. As with all of the other factors that we consider in order to evaluate suspicious circumstances, the nature of the devise must be relevant to the intent of the testator and not simply be a reversion to the dictates of the intestacy statutes. See In re Estate of Gersbach, 1998-NMSC-013, \u00b6 30, 125 N.M. 269, 960 P.2d 811 (\u201cWe cannot speculate about motive or reasons ... without jeopardizing the principle of testamentary freedom. Otherwise, any significant testamentary gift outside the class of intestate takers would be vulnerable to a contest on the basis of undue influence.\u201d (citation omitted)). We therefore require evidence that the division of property did not reflect the intent of the testator, evidence that Gregoria wanted to distribute her property differently from what was accomplished by the will.\n{20} We initially note that at trial, Siblings tendered expert testimony on the nature of the disposition. Siblings asked a probate attorney, Fletcher Catron, whether the will was a natural disposition of Gregoria\u2019s estate. He provided the following response: \u201cI don\u2019t believe that it is. I have seen other dispositions that are similar to this one, but, no, I would say that it is an uncommon distribution.\u201d Catron was not asked \u2014 nor would he have been able \u2014 to provide evidence regarding Gregoria and her intentions when she distributed her property. This testimony does not answer the key question: What did Gregoria intend?\n{21} In order to determine whether a will is an unnatural devise, some courts look to a previous will or the previously stated intentions of a testator. See id. \u00b625; see also Doughty v. Morris, 117 N.M. 284, 289-90, 871 P.2d 380, 385-86 (Ct.App.1994) (evaluating \u201cthe unequal disposition of [the testator\u2019s]. property which was contrary to [the testator\u2019s] intent that her estate be shared equally\u201d in order to support a finding of undue influence); Roybal, 100 N.M. at 310, 669 P.2d at 1105 (considering evidence that the testator had previously stated \u201cthat it was his intention to leave his property equally to both\u201d parties). Initially, we observe that there is no evidence at all that Gregoria intended to divide her property among all nine children. Four of the siblings testified that Gregoria had expressed an intention to leave the family home to Gilbert. A neighbor and distant relation, Donald C de Baca, also testified that Gregoria \u201csaid this place belonged to Gilbert.\u201d Additionally, there was testimony that at one time, Gregoria intended to leave a different parcel of property to Donna.\n{22} Gregoria\u2019s expressed intentions about future events have less impact, however, than her actions during life. Indeed, much of Gregoria\u2019s money and property was dispersed to her children during her lifetime, as was reflected in the will. When Gregoria decided that she wanted to give Rudy a piece of property, she deeded that property to Rudy. Gregoria made Simon a $5,000 loan, which he never repaid. Beginning in 1991, after the bank foreclosed on Gilbert\u2019s house, he lived in Gregoria\u2019s home without paying rent. Before the foreclosure proceeding, Gregoria helped Gilbert financially and was only partially repaid. Gregoria loaned Daniel $30,000, little of which was repaid, and she also loaned small amounts of money to Rosina and babysat Rosina\u2019s children.\n{23} At the same time that Siblings tried to show that Gregoria had expressed intentions for her property that were different from those expressed in the will, Siblings also presented a great deal of evidence to support the conclusion that when Gregoria wanted to make a gift, she made it. The In re Estate of Gersbach Court noted that \u201cevidence of what a prior will provided is of limited utility in evaluating the validity of provisions in a subsequent will.\u201d 1998-NMSC-013, \u00b6 25, 125 N.M. 269, 960 P.2d 811. We conclude that Siblings\u2019 testimony regarding Gregoria\u2019s previously stated intentions neither establishes that Gregoria\u2019s failure to provide gifts for all of her children should raise a presumption of improper influence nor establishes that Gregoria\u2019s previously stated intentions suggest impropriety.\n{24} Considering the evidentiary force of previously expressed intentions, the trial court also found that \u201cthe [w]ill w[as] at variance with the previous declarations and known affections of Gregoria.\u201d The will specifically excludes each child, except Viola, and provides a reason for the exclusion. Nevertheless, Siblings insist that there is no explanation for their exclusion from the will. In support of their contention that the will did not evidence Gregoria\u2019s intent, Siblings testified that many of the statements made in the will were not true. The will states that Rosina had \u201cvirtually no contact\u201d with Gregoria for twenty years, but Rosina testified that she saw her mother often.\n{25} The will explains that Gregoria had \u201cloaned [Dan] money when he needed it and [that] all loans are now considered repaid.\u201d Dan borrowed $30,000 from his mother, and he testified that it was Viola who \u201cspecifically told [him that he] didn\u2019t have to pay it back.\u201d According to Dan, his mother never referred to the loan as an inheritance. The will berates Gilbert for \u201cliv[ing] at [her] house for about 15 years [without] ma[king] any attempt to pay even one utility bill or rent for his room.\u201d Gilbert testified that he \u201cwould offer [his mother] money and [that] she would say that [his] father left her more than what she would ever need and not to worry about it.\u201d The will continues and charges that Gilbert \u201cwas also very moody at times and would not speak to [Gregoria].\u201d At trial, Gilbert explained that he and his mother \u201chad a lot of conversations alone.\u201d Finally, the will declares that Gilbert \u201cnever appreciated what [Gregoria] did for him.\u201d Gilbert insisted, \u201cShe always told me she appreciated me, and I always told her I appreciated her.\u201d He continued as follows: \u201cWe worked with each other. We were there for each other.\u201d\n{26} The trial court determined that the disposition was unnatural, and Siblings presented a great deal of testimony to establish that the sentiments expressed in the will did not adequately reflect their relationship with their mother. Nevertheless, we observe that although Siblings provided evidence that they maintained excellent relationships with their mother, this evidence does not provide insight into Gregoria\u2019s intentions regarding her property. See In re Estate of Keeney, 121 N.M. 58, 62, 908 P.2d 751, 755 (Ct.App.1995) (noting that a suspicious circumstance was established when the contestant provided some linkage between the evidence and purported undue influence). There is no evidence that Gregoria intended to divide her property equally among her children such that the presumption of undue influence would be raised by her failure to do so. Accordingly, we conclude that the evidence did not support the trial court\u2019s findings that the division of property was unnatural.\nc. Procurement\n{27} The trial court found that \u201cViola Varela was directly involved in the procurement of the [w]ill.\u201d Our review of the record, however, reveals that there was insufficient evidence to support this finding. In re Estate of Gonzales addressed the issue of procurement, and this Court concluded that in order for there to be a suspicious circumstance, there must be \u201cparticipation] in procuring the will by securing its execution.\u201d 108 N.M. at 586, 775 P.2d at 1303. In that ease, a beneficiary took a testator to an appointment for executing a will, and the beneficiary also acted as a witness to the will. Id. This Court determined that the beneficiary\u2019s presence at the execution of the will was evidence related to the confidential relationship between the parties, not to suspicious circumstances. Id. In addition, although the beneficiary signed the will, that signature was not necessary for its execution. Id. The Court therefore held that \u201c[i]t cannot be said that [the beneficiary] participated in procuring the will by securing its execution when his signature was unnecessary.\u201d Id. We additionally note that the term \u201cprocurement\u201d is defined as \u201c[t]he act of getting or obtaining something.\u201d Black\u2019s Law Dictionary 1244 (8th ed. 2004). Thus, in order for Siblings to show that Viola participated in the procurement of the will, they had to provide evidence that she became the beneficiary of the will by securing its legal execution. We point out that in the present case, there were two wills created and that only the second was properly executed and valid. Because the suspicious circumstance of procurement is specific to legal execution of a document or transfer, we only consider Viola\u2019s participation in the execution of the second, valid will.\n{28} The first will was typed by Viola\u2019s daughter, Victoria, in December 2000, and that will was notarized on February 2, 2001. Sometime after the first will was notarized, Gregoria and Viola looked for an attorney to make sure that the first will was \u201ccorrectly done.\u201d After visiting two other attorneys, Viola then made an appointment for her mother to see Ruben Rodriguez, an attorney whom Viola had met when both she and Rodriguez worked for the City.\n{29} Viola drove her mother to the appointment, and Viola was in the room with her mother and Rodriguez during the first meeting. Rodriguez informed the women that the first will was not properly executed and that a second will was necessary. The billing statement for Rodriguez\u2019s work was sent to Viola. She was not, however, in the room when Gregoria executed the will. Rodriguez gave the following testimony:\nWhen Mrs. C de Baca came to my office to sign the will and other documents, I had her come into my office by herself. Viola walked in with her and then I told Viola to step out because I knew that the will affected her directly and I didn\u2019t want her to be in the same room while [Gregoria] was executing her will because I was going to ask her some questions.\nThese facts do not support an inference of misconduct on Viola\u2019s part in relation to the procurement of the second will; instead, they imply that Gregoria could not drive herself to appointments. Viola made the appointment for her mother, and Viola made sure that Gregoria was able to get to Rodriguez\u2019s office. There is no evidence that Viola\u2019s participation was necessary for the legal execution of the will. See In re Estate of Gonzales, 108 N.M. at 586, 775 P.2d at 1303 (concluding that a beneficiary could not be said to have participated in procuring a will when his actions were not necessary to prove due execution). There is also no evidence that Viola\u2019s actions relating to the execution of the will influenced Gregoria\u2019s stated intent in the document.\n{30} We have already explained that if Siblings successfully raise a presumption of undue influence, the burden shifts to Viola to present \u201cevidence to meet or rebut the presumption, not carry the burden of persuasion on the existence of the presumed fact.\u201d Montoya, 113 N.M. at 111, 823 P.2d at 911. After reviewing the record and based on the evidence presented and explained above, we conclude that Siblings did not prove that Viola improperly participated in the procurement of the will.\nd. Domination or Control over the Donor\n{31} In Hummer v. Betenbough, 75 N.M. 274, 404 P.2d 110 (1965), our Supreme Court considered a will signed by an elderly woman, and the Court determined that the will was the product of the undue influence of the testator\u2019s brothers. Id. at 283-85, 404 P.2d at 117-18. The Hummer Court noted the following facts:\n[The] decedent was 72 years of age when she made the will in question and that she was dominated and coerced by her brothers to the point that she was afraid of them, even when not in their presence---There is evidence that [the] decedent was easily influenced, made no independent suggestions herself, agreed with anything anyone stated to her, and ... agreed with what the last person to talk to her had to say____[S]he was apparently so dominated by her brothers that ... she was thoroughly convinced as to what her will should contain.\nId. at 283-84, 404 P.2d at 117. Siblings likewise argue that Viola dominated Gregoria and influenced her to execute the will that did not reflect her intentions. The trial court made the following findings regarding Viola\u2019s control and influence over Gregoria:\n11. Viola Varela used her position of confidence and power to her advantage to influence and control the actions and decisions of Gregoria C de Baca.\n17. Viola Varela had an assertive and domineering personality. Gregoria C de Baca was submissive when around Viola.\n18. Viola Varela attempted to poison the relationship between Gregoria C de Baca and her other children by making disparaging and derogatory remarks about them and attempting to restrict their access to Ms. C de Baca.\n{32} A number of family members testified that Gregoria would become more subdued whenever Viola was present. Edwina and Joan, Rudy\u2019s wife, also testified that Viola would often speak for Gregoria or answer questions for her. Individual siblings further testified that Viola often made disparaging remarks about the other siblings. Rosina testified that when she would encounter Gregoria and Viola in public, Viola would \u201cturn around and start yelling at [Gregoria, \u2018T]here is Rosina[;] she\u2019s not talking to you.\u2019 \u201d Daniel testified that \u201cthere were times [when he] would hear Viola[ \u2014 ]sitting next to [Gregoria] in the front living room[ \u2014 ]saying that Gilbert was stealing everything he could from her.\u201d None of this evidence rises to the level of dominance found in Hummer. There is no indication that Gregoria was afraid of Viola or that Viola induced Gregoria to believe things that she otherwise would not have believed. Indeed, Gregoria was apparently unaffected by Viola\u2019s animosity toward the others. Regardless of Viola\u2019s comments, Gregoria spent significant time with each of her children, before and after the will was executed. Gregoria\u2019s continued relationships with her other children suggest that Viola did not control or dominate her mother\u2019s feelings and relationships.\n{33} In addition, non-family members did not notice a controlling dynamic between Viola and Gregoria during numerous medical visits and public outings. Dr. Gabriela Munoz, a clinical psychologist, created a report based on an interview with Gregoria, and the report stated the following: \u201c[Questioning reveals that Mrs. C de Baca knows and understands the meaning and the purpose of executing a[w]ill and/or signing a property deed. She is also aware that she has deeded all of her real estate properties to her daughter[] Viola.\u201d Though it is unclear as to whether Viola was present when Gregoria made these statements, Dr. Mu\u00f1oz testified that Viola did not coach Gregoria during the interview and that Gregoria provided all of the answers to Dr. Mu\u00f1oz\u2019s questions. Specifically, Dr. Mu\u00f1oz explained that she \u201cdidn\u2019t talk to Viola\u201d and, instead, that \u201call the information [came] from Mrs. C de Baca.\u201d\n{34} Dr. Justina Trott, Gregoria\u2019s physician for many years, also testified that Viola and Gregoria had a good relationship. Dr. Trott explained, \u201cI certainly have patients whose family brings them in who prefer to be talked with alone and make that known to me or who confide that they\u2019re concerned about their children meddling in their affairs.\u201d Dr. Trott continued, \u201cThere [was] never any conversation or suggestion that that was the case with Gregoria.\u201d\n{35} Siblings also presented testimony that Viola exercised control over Gregoria in order to prevent her from securing independent representation. Siblings testified that after they discovered the deeds in Viola\u2019s name, they showed the deeds to Gregoria. Gilbert, Edwina, and Rudy testified that Gregoria denied having signed the deeds and that Gregoria wanted her property back in her own name. Siblings took Gregoria to a number of attorneys in order to try to put the property back into Gregoria\u2019s name. The final visit was to attorney Cheryl Sommer, who testified that she was retained by Gregoria in order to investigate the deeds and retrieve the property. Sommer further testified that Gregoria expressed a desire to get her property back.\n{36} Sommer sent a letter to Viola on January 28, 2003, and requested that Viola return the property to Gregoria. A couple of weeks later, on February 10, Sommer reviewed a note from Gregoria, which terminated Sommer\u2019s services. The note was delivered to Sommer\u2019s office by Vincent, and Siblings acknowledge that the note was in Gregoria\u2019s handwriting. A day or two later, Siblings and Gregoria kept an appointment with Sommer, and the testimony indicated that Gregoria did not mention that she had fired Sommer. With this evidence, Siblings suggested that Gregoria attempted to hire Sommer to get the property back, that Viola became aware of the attorney\u2019s involvement, and that Viola induced Gregoria to fire Sommer before Sommer could interfere with the deeds.\n{37} Even if Viola influenced Gregoria\u2019s decision to fire Sommer, we do not believe that evidence supports a further inference that Viola manipulated Gregoria into making a will that did not reflect her intentions. Dr. Mu\u00f1oz evaluated Gregoria in March 2003, after Gregoria had hired and fired Sommer. During this evaluation, Gregoria independently reiterated the sentiments in the will. Dr. Mu\u00f1oz testified that Viola did not coach Gregoria during the interview and that Gregoria provided all of the information about the will.\n{38} Siblings additionally argue that \u201cGregoria did not participate at all in the preparation of the [first] will.\u201d Rodriguez testified that when Viola and Gregoria visited him to execute the second will, Gregoria wanted to copy exactly the language from the first will into the second will. Indeed, the language in the two wills is nearly identical. Siblings use inconsistencies in the testimony of Viola and Victoria to show that Gregoria did not author the first will and that the intentions expressed in the second will are therefore also not Gregoria\u2019s. We do not believe that these inconsistencies shed light on Gregoria\u2019s intent. Questions about whether there was a rough draft, who typed the first page, the tense of the verbs used, and whether standard testamentary language was copied from a form will do not help us to discern the ultimate issue \u2014 whether Gregoria intended the distribution of her property that is set out in the will.\n{39} In further support of the contention that Viola controlled the drafting and execution of the will, Siblings argue that \u201c[w]hat likely happened\u201d in Rodriguez\u2019s office was the following: \u201c[W]hen Mr. Rodriguez asked Gregoria what [she] want[ed] to do, Viola answered for her: \u2018My mother wants to do the new will the same as the old one.\u2019 Gregoria was sitting right there and seemed to be in agreement, but she probably didn\u2019t hear what was said.\u201d We are unwilling to speculate about \u201cwhat likely happened.\u201d Rodriguez testified that he went over the will with Gregoria, out of Viola\u2019s presence, before the will was executed. Specifically, Rodriguez said that he read the will to Gregoria. It is undisputed that Gregoria suffered from severe hearing loss after her stroke and that a person had to speak directly into her right ear in order for Gregoria to hear. On cross-examination, however, Rodriguez stated that he did not notice that Gregoria had any hearing difficulty. Rodriguez\u2019s failure to notice that Gregoria had difficulty hearing is not evidence that Viola dominated or influenced her mother to execute the second will. To the contrary, Rodriquez testified, \u201cEverything that is in the will, either [Gregoria] told me verbally what she wanted to do or I copied from the information that was in the original will that she wanted to replace.\u201d Rodriguez also testified that Gregoria \u201cwent over the will with [him], item by item,\u201d and that Viola \u201cdid not say very much after [Gregoria] started talking to [him].\u201d\n{40} In Hummer, the will proponent offered the testimony of the drafting attorney in order to establish that there was no undue influence. 75 N.M. at 284, 404 P.2d at 117. Our Supreme Court interpreted the attorney\u2019s testimony to indicate that \u201cif undue influence were exerted on [the] decedent, [the attorney] had no knowledge of such influence.\u201d Id. at 285, 404 P.2d at 118. As a result, the attorney\u2019s testimony was insufficient to rebut all of the other evidence that was presented to establish undue influence. Id. In the present case, however, Rodriguez affirmatively testified that Gregoria told him what she wanted the will to say. In addition, there is also the testimony of Gregoria\u2019s doctor and Dr. Mu\u00f1oz, neither of whom noticed dominance or control. Dr. Mu\u00f1oz also testified that Gregoria reiterated her wishes regarding the property.\n{41} Siblings failed to establish that Viola controlled or dominated Gregoria to the extent that Gregoria was compelled to draft the will to benefit Viola. There is no evidence that Gregoria was afraid or confused, that Gregoria was easily influenced by Viola, or that Gregoria did not know or understand the contents of the will. Consequently, we hold that there was insufficient evidence to support the conclusion that Viola controlled or dominated her mother such that the will was not the result of Gregoria\u2019s intentions.\ne. Secrecy\n{42} In the case In re Estate of Gersbach, our Supreme Court explained that \u201cthe failure to disclose a gift or secrecy by a beneficiary is a suspicious circumstance.\u201d 1998-NMSC-013, \u00b6 14, 125 N.M. 269, 960 P.2d 811. Siblings were required to show that Viola \u201chad knowledge of the devise and kept it a secret.\u201d Id. The trial court made the following finding: \u201cViola Varela was secretive. She did not keep Gregoria C de Baca or her brothers and sisters informed of some actions taken concerning the properties and assets of Gregoria C de Baca.\u201d There is no question that Viola had knowledge of the devise. Further, during cross-examination, Viola was asked whether she \u201cke[pt her] brothers and sisters informed of the various documents that ha[d] been admitted into evidence, the two powers of attorney, two medical directives, two wills and five deeds.\u201d Viola responded as follows: \u201cNo, I didn\u2019t. My mother always requested that whatever those documents involved were between me and her, and not to discuss it with anyone else.\u201d We note again that the trial court found that Viola\u2019s testimony was impeached; therefore, we do not credit the assertion that Gregoria told Viola not to discuss the will. We will, however, consider whether the secrecy regarding the devise furthers the inquiry into Gregoria\u2019s intent.\n{43} Secrecy is most relevant as a suspicious circumstance in situations like that found in Doughty. In that case, a son convinced his mother to transfer property into his name while she was in the hospital. 117 N.M. at 286-87, 871 P.2d at 382-83. The mother\u2019s will devised her property equally between her two children; however, after the son\u2019s transfers, no property remained in the estate. Id. at 286, 871 P.2d at 382. The son did not tell his sister that the property had been transferred until after the mother died. Id. at 287, 290, 871 P.2d at 383, 386. In Doughty, the court concluded that \u201c[t]he secrecy and concealment of these transfers is suspicious and supports the trial court\u2019s finding of undue influence.\u201d Id. at 290, 871 P.2d at 386.\n{44} In the present case, while it is clear that Viola did not tell her siblings about the will, it is not clear that this secrecy is indicative of undue influence. The effect of the will is in the residuary clause, which devises all of Gregoria\u2019s remaining property to Viola. This outcome was also achieved when Gregoria deeded the five properties to Viola in July 2001. Siblings discovered these deeds in 2002. The result is that Siblings had notice that the property was in Viola\u2019s hands, and after the unsuccessful visit to Sommer, Siblings took no action to regain the property. In Doughty, the fact of secrecy helped this Court determine whether the transfer was not the mother\u2019s intention. In order to prevent the sister from directly confronting the mother with the transfer, the brother did not tell the sister about the transfer. We do not have that scenario in the present case. In fact, we do not see how secrecy is a relevant factor in this case at all because Siblings had knowledge of the transfer of property and confronted Gregoria about the deeds.\nf. Consideration\n{45} Our Supreme Court has indicated that \u201cthe existence of consideration may help rebut a presumption of undue influence.\u201d In re Estate of Gersbach, 1998-NMSC-013, \u00b6 21, 125 N.M. 269, 960 P.2d 811. Though it is clear that Viola paid no money for the property, she contends that \u201cin exchange for all that Viola had done for [Gregoria], she deeded Viola the property.\u201d Though Siblings testified that everyone helped to take care of Gregoria, Viola also spent a great deal of time taking care of Gregoria. Edwina testified as follows: \u201cViola and I would alternate days or we would do days together____At the hospital, Viola and I would spend the nights at the hospital taking turns.\u201d Dr. Trott testified as follows:\nTo the best of my recollection, Viola ... was the only person to accompany [Gregoria] to my office or to call my office regarding her mother\u2019s health over the last approximately 17 years, and [Gregoria] often remarked to me how much she enjoyed being with her daughter and how much [Gregoria] relied upon her.\nDr. Mu\u00f1oz\u2019s report indicates that Gregoria said she wanted Viola to have the property because \u201c[s]he is the one who is always by [Gregoria].\u201d In re Estate of Gersbach observed that \u201ca friendship of long standing may help prevent a presumption of undue influence from arising,\u201d id. \u00b621, and we agree.\n3. Presumption of Undue Influence\n{46} In order to give rise to a presumption of undue influence, \u201cthe evidence must justify an inference of misconduct, which produced a desired or foreseeable result.\u201d Id. \u00b6 29. As we have discussed, there was evidence to support a confidential relationship. However, the In re Estate of Gersbach Court, in overturning a finding of undue influence, stated the following:\nIn order to uphold the ... judgment [of undue influence], we would need to conclude that, viewing the evidence in the light most favorable to [the contestant], a reasonable fact finder could find clear and convincing evidence that the testator made a gift he would not have made absent improper influence.\nId. \u00b6 31.\n{47} Although Siblings presented a great deal of evidence that appears to satisfy the elements of undue influence, closer examination reveals that very little of the testimony and evidence is relevant to the determination of Gregoria\u2019s intent. The evidence regarding old age, unnatural disposition, domination, and secrecy did not establish that Viola substituted her own intent for Gregoria\u2019s. We further concluded that Viola did not participate in the procurement of the will and that there is some evidence that Viola provided consideration in the form of love, friendship, and help with daily living. In light of this evidence, we are not convinced that there was sufficient evidence for the trial court to develop an abiding conviction that the will was the product of undue influence and that as a result, the will did not express Gregoria\u2019s intentions for her property. In the case In re Estate of Gersbach, 1998-NMSC-013, \u00b6\u00b6 29-30, 125 N.M. 269, 960 P.2d 811, the trial court found a confidential relationship and some suspicious circumstances on evidence that is comparable to the evidence in this case. Our Supreme Court reversed, and based on a comparison of the facts in that case to the facts in the case before us now, we are compelled to do the same. Id. \u00b6 31. Accordingly, we hold that Siblings failed to present clear and convincing evidence that Gregoria would not have executed the will absent improper influence from Viola. We reverse the trial court\u2019s conclusion that the will was the result of undue influence by Viola.\nB. The Remaining Appeals\n{48} We will consider the appeal of Edwina and Gilbert together with the cross-appeal of Vincent because many of their issues are interrelated.\n1. Malicious Abuse of Process and Slander of Title\n{49} The trial court made the following finding:\nAt the time the civil complaint was filed, [Edwina Chapman and Gilbert C de Baca] knew full well that Vincent Varela had purchased the Magdalena Street property from [Gregoria C de Baca] and that two mortgages to that effect were recorded and were matters of public record. [Edwina Chapman and Gilbert C de Baca\u2019s e]omplaint against Vincent Varela was improper. Their demands for countless documents were not only unnecessary, time[-]consuming[,] and expensive, but were unproductive other than to confirm the sale. The only purpose for the filing of the lis pendens was to place a cloud on the title and [it] was done [with] an ulteri- or motive.\nAs a result of this finding, the trial court granted Vincent\u2019s claim for slander of title but dismissed the claim for malicious abuse of process. Vincent argues that the finding supports both slander of title and malicious abuse of process. Edwina and Gilbert insist that there was no evidence at trial to support either slander of title or malicious abuse of process.\n{50} We first consider Edwina and Gilbert\u2019s argument that the trial court\u2019s conclusion of slander of title was not supported by the findings of fact. Vincent argues that Edwina and Gilbert did not properly appeal the trial court\u2019s determinations regarding slander of title because Edwina and Gilbert appealed the trial court\u2019s order on damages, rather than the corrected final order. We are not persuaded. Though it is true that the notice of appeal refers to the order on damages, that order also included the following finding: \u201cThe [c]ourt granted Vincent Varela\u2019s counterclaim for slander of title and retained jurisdiction only to consider damages on Vincent Varela\u2019s slander of title claim.\u201d The ruling on slander of title was not appealable until the trial court determined the award for damages. See Prin cipal Mut. Life Ins. Co. v. Straus, 116 N.M. 412, 414, 863 P.2d 447, 449 (1993). We conclude that the appeal of the order on damages was sufficient to encompass the trial court\u2019s ruling on slander of title. Vincent also argues that Edwina and Gilbert did not properly preserve their arguments challenging the slander of title ruling. After examining the record, we are satisfied that Edwina and Gilbert correctly challenged Vincent\u2019s slander of title claim in their motion for summary judgment and that the trial court was alerted to the relevant legal issues. See Murken v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-080, \u00b6 10, 140 N.M. 68, 139 P.3d 864.\n{51} This Court has previously held that \u201c[sjlander of title occurs when one who, without the privilege to do so, willfully records or publishes matter which is untrue and disparaging to another\u2019s property rights in land as would lead a reasonable man to foresee that the conduct of a third purchaser might be determined thereby.\u201d Vill. of Wagon Mound v. Mora Trust, 2003-NMCA-035, \u00b6 74, 133 N.M. 373, 62 P.3d 1255 (internal quotation marks and citation omitted). In Superior Construction, Inc. v. Linnerooth, 103 N.M. 716, 712 P.2d 1378 (1986), our Supreme Court established that \u201cthe filing of a lis pendens is absolutely privileged and cannot support an action for slander of title.\u201d Id. at 720, 712 P.2d at 1382. The Linnerooth Court also noted that it is \u201c[o]nly in extreme cases [that] a publication made in connection with a judicial proceeding [will] serve as the basis for a defamation action.\u201d Id. at 719, 712 P.2d at 1381 (alterations in original) (internal quotation marks and citation omitted). The only publications by Edwina and Gilbert that are supported by the trial court\u2019s findings or the evidence presented at trial are the notice of lis pendens and the filing of the cause of action. Neither is sufficient to support a cause of action for slander of title.\n{52} Vincent attempts to distinguish between a suit filed for slander of title and a counterclaim based on slander of title. Vincent cites Ruiz v. Varan, 110 N.M. 478, 479 n. 1, 797 P.2d 267, 268 n. 1 (1990) (emphasis omitted), for the proposition that the New Mexico courts have not yet addressed \u201cthe question whether a counterclaim for abuse of process or slander of title can properly be filed in response to the complaint on which the lis pendens is based.\u201d Ruiz, however, does not decide the issue, and Vincent does not explain why a counterclaim for slander of title would be an example of the \u201ckinds of extreme circumstances that allow for a defamation action arising from publication of material in a judicial proceeding.\u201d Linnerooth, 103 N.M. at 719, 712 P.2d at 1381. We will not consider the issue because it is not supported by argument and authority. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (\u201cWe have long held that to present an issue on appeal for review, an appellant must submit argument and authority as required by rule.\u201d). We hold that the trial court erred in concluding that the findings of fact supported a claim for slander of title.\n{53} Next, we turn to Vincent\u2019s contention that the trial court mistakenly dismissed his claim for malicious abuse of process. Malicious abuse of process consists of the following elements:\n(1) the initiation of judicial proceedings against the plaintiff by the defendant; (2) an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim; (3) a primary motive by the defendant in misusing the process to accomplish an illegitimate end; and (4) damages.\nDeVaney v. Thriftway Mktg. Corp., 1998-NMSC-001, \u00b6 17, 124 N.M. 512, 953 P.2d 277, abrogated on other grounds, Fleetwood Retail Corp. of N.M. v. LeDoux, 2007-NMSC-047, \u00b6 30, 142 N.M. 150, 164 P.3d 31. \u201cThe second element \u2014 misuse of process \u2014 can be shown in one of two ways: (1) filing a complaint without probable cause, or (2) an \u2018irregularity or impropriety suggesting extortion, delay, or harassment.\u2019 \u201d Fleetwood, 2007-NMSC-047, \u00b6 12, 142 N.M. 150, 164 P.3d 31 (citing and quoting DeVaney, 1998-NMSC-001, \u00b6\u00b6 22, 28, 124 N.M. 512, 953 P.2d 277). Vincent argues that the evidence at trial supported the conclusion that Edwina and Gilbert \u201cmisuse[d] ... the power of the judiciary [with] a malicious motive,\u201d DeVaney, 1998-NMSC-001, \u00b617, 124 N.M. 512, 953 P.2d 277, by filing a complaint against Vincent that alleged that he did not pay Gregoria for the property. We agree.\n{54} As a matter of law, the findings of the trial court support all four elements of malicious abuse of process, and our review of the record persuades us that those findings were supported by substantial evidence. Edwina and Gilbert filed a civil complaint against Vincent, which satisfied the first element. The second element is fulfilled if Edwina and Gilbert filed the complaint without \u201cprobable cause,\u201d which is defined as \u201cthe reasonable belief, founded on known facts established after a reasonable pre-filing investigation, that a claim c[ould] be established to the satisfaction of a court or jury.\u201d Id. \u00b6 22 (citation and footnote omitted). The trial court found that Edwina and Gilbert knew that Vincent had legitimately purchased the property from Gregoria and that their complaint was improper. The trial court further found that the subsequent demands of the lawsuit on Vincent, including requests for documents, were \u201cunnecessary, time[-]consuming[,] and expensive,\u201d which satisfied the third element. Finally, the trial court found that Vincent suffered damages as a result of the filing. At the hearing on damages, the trial court awarded no actual damages, but granted Vincent $12,000 in nominal damages and attorney fees. The DeVaney Court made it clear that \u201cthe plaintiff [in a malicious abuse of process action] has the burden of demonstrating actual damages for all forms of harm.\u201d Id. \u00b6 38. Vincent established that he suffered attorney fees, which we discuss in detail in subsequent paragraphs. Attorney fees are sufficient damages to establish the final element of malicious abuse of process. See Dawley v. La Puerta Architectural Antiques, Inc., 2003-NMCA-029, \u00b6\u00b6 11, 44, 133 N.M. 389, 62 P.3d 1271 (affirming the judgment of the trial court, which included an award of attorney fees as compensatory damages for a successful malicious abuse of process claim); see also DeVaney, 1998-NMSC-001, \u00b6 36, 124 N.M. 512, 953 P.2d 277 (eliminating the requirement of special damages for the tort of malicious abuse of process in order to allow \u201cvictims of groundless suits to obtain adequate redress\u201d). As a matter of law, we must therefore conclude that the trial court\u2019s findings support a conclusion that Edwina and Gilbert committed the tort of malicious abuse of process. See Weststar Mortgage Corp. v. Jackson, 2003-NMSC-002, \u00b6 8, 133 N.M. 114, 61 P.3d 823 (assessing whether the evidence to support a malicious abuse of process determination was sufficient as a matter of law).\n2. Attorney Fees, Costs, and Nominal Damages\n{55} Both parties challenge the trial court\u2019s award of attorney fees for the slander of title claim. However, we have reversed the trial court\u2019s ruling on the slander of title claim, and attorney fees for that claim are therefore no longer justified. As a result, we first consider whether Vincent was entitled to a larger award of attorney fees than the trial court granted, based on the malicious abuse of process claim. Second, we determine whether the trial court\u2019s award of nominal damages and costs was proper.\n{56} As we have already stated, the tort of malicious abuse of process allows for recovery of attorney fees as compensatory damages. See Dawley, 2003-NMCA-029, \u00b6\u00b6 11, 44, 133 N.M. 389, 62 P.3d 1271. We review the trial court\u2019s award of attorney fees for abuse of discretion. See Bird v. State Farm Mut. Auto. Ins. Co., 2007-NMCA-088, \u00b6 27, 142 N.M. 346, 165 P.3d 343. Vincent offered proof that he paid $19,462.88 in attorney fees. After a hearing on the matter, the trial court granted Vincent one half of this amount. Vincent contends that he was entitled to recover the full amount. Vincent and Viola were represented by the same attorneys. \u201c[W]hen an attorney\u2019s services are rendered in pursuit of multiple objectives, some of which permit a fee and some of which do not, the trial court must apportion the fees and award only those that are compensable.\u201d Charter Servs., Inc. v. Principal Mut. Life Ins. Co., 117 N.M. 82, 86, 868 P.2d 1307, 1311 (Ct.App.1994). Though it appears from the record that Vincent\u2019s attorneys redacted the portion of their fees relating to Viola\u2019s claims, we see no abuse of discretion with the trial court\u2019s further apportionment. A trial judge who sits through the trial has a unique insight into the value of the attorney\u2019s services and may use that insight in assessing the fee award. See In re N.M. Indirect Purchasers Microsoft Corp. Antitrust Litig., 2007-NMCA-007, \u00b6 12, 140 N.M. 879, 149 P.3d 976. Therefore, we uphold the award of attorney fees.\n{57} Edwina and Gilbert also challenge the amount of the award that the trial court granted to Vincent for costs. Rule 1-054(D)(1) NMRA states that \u201ccosts, other than attorney fees, shall be allowed to the prevailing party unless the court otherwise directs.\u201d We review the trial court\u2019s judgment regarding costs for abuse of discretion. See Mayeux v. Winder, 2006-NMCA-028, \u00b6\u00b6 40-41, 139 N.M. 235, 131 P.3d 85. A court \u201cabuses its discretion if its decision is contrary to logic and reason. Moreover, a discretionary decision that [is] premised on a misapprehension of the law can be characterized as an abuse of discretion.\u201d Paz v. Tijerina, 2007-NMCA-109, \u00b6 8, 142 N.M. 391, 165 P.3d 1167 (alteration in original) (internal quotation marks and citations omitted). After a hearing on the issue of costs, the trial court awarded Vincent costs in the amount of $5,355.05. Specifically, Edwina and Gilbert challenge the awards for depositions, production of exhibits, and certain expert witness fees.\n{58} Rule l-054(D)(2)(e) allows for recovery of \u201cthe cost of a deposition if any part is used at trial.\u201d Rule l-054(D)(2)(i) allows the prevailing party to recover for \u201creasonable expenses involved in the production of exhibits which are admitted into evidence.\u201d Edwina and Gilbert contend that all of the deposition witnesses who were identified by Vincent in his cost bill were also deposed for the benefit of Viola and that there was no distinction made at the hearing between depositions for Vincent and depositions for Viola. Edwina and Gilbert also argue that Vincent provided no breakdown of which exhibits were Vincent\u2019s and which were Viola\u2019s and that Vincent may thus not recover the amount awarded by the court. Edwina and Gilbert\u2019s arguments on these matters are speculative. The trial court heard the arguments and received evidence on these matters, the trial court was well positioned to determine whether the depositions were for the benefit of Viola or Vincent or both, and we conclude that the trial court\u2019s decision to award costs for these items was not contrary to logic and reason.\n{59} Edwina and Gilbert also dispute the award of costs regarding the testimony of five expert witnesses and argue that four of those \u201cwitnesses testified concerning increased construction costs and loan fees, an issue on which [Vincent] did not prevail.\u201d The remaining expert, a handwriting specialist, did not testify, and Vincent does not claim that the specialist was deposed. Expert witness fees are authorized as costs \u201cfor any witness who qualifies as an expert and who testifies in the cause in person or by deposition.\u201d Fernandez v. Espa\u00f1ola Pub. Sch. Dist., 2005-NMSC-026, \u00b6 5, 138 N.M. 283, 119 P.3d 163 (internal quotation marks and citation omitted). We will not second-guess the trial court\u2019s decision regarding the four witnesses who testified. Although Vincent did not prevail on the precise issue about which the witnesses testified, the trial court heard the testimony of the witnesses and weighed the value of that testimony in its decision to award costs. Vincent may not, however, recover expert witness fees for the expert who did not testify and was not deposed. Id. \u00b6 8 (\u201c[E]xpert witness fees may only be recovered as costs when the witness testifies.\u201d). Accordingly, we reverse the part of the trial court\u2019s order that grants Vincent costs for the handwriting expert.\n{60} Edwina and Gilbert also argue that attorney fees operate as compensatory damages in the context of Vincent\u2019s claim and that the award of attorney fees therefore precludes the trial court from also awarding nominal damages. We agree. Nominal damages are \u201ca trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages.\u201d Sanchez v. Clayton, 117 N.M. 761, 767, 877 P.2d 567, 573 (1994) (emphasis omitted) (internal quotation marks and citation omitted). Vincent proved that he suffered compensatory damages in the form of attorney fees. See Dawley, 2003-NMCA-029, \u00b6\u00b6 11, 44, 133 N.M. 389, 62 P.3d 1271. As a result, he is not also entitled to recover nominal damages.\n3. Post-judgment Interest\n{61} Vincent next argues that he was entitled to post-judgment interest at a rate of fifteen percent, instead of the eight and three-fourths percent that the trial court awarded. NMSA 1978, \u00a7 56-8-4 (2004), states the following:\nA. Interest shall be allowed on judgments and decrees for the payment of money from entry and shall be calculated at the rate of eight and three-fourths percent per year, unless\n(2) the judgment is based on tortious conduct, bad faith or intentional or willful acts, in which case interest shall be computed at the rate of fifteen percent.\n\u201c[A]n award of post-judgment interest under Section 56-8-4(A) is mandatory.\u201d Nava v. City of Santa Fe, 2004-NMSC-039, \u00b6 22, 136 N.M. 647, 103 P.3d 571; see also Pub. Serv. Co. of N.M. v. Diamond D Constr. Co., 2001-NMCA-082, \u00b6 54, 131 N.M. 100, 33 P.3d 651. \u201cAn award of post-judgment interest serves three purposes: compensating the plaintiff for being deprived of compensation from the time of the judgment until payment ... by the defendant, discouraging unsuccessful defendants from pursuing frivolous appeals, and minimizing court supervision of the execution of judgments.\u201d Bird, 2007-NMCA-088, \u00b6 42, 142 N.M. 346, 165 P.3d 343 (internal quotation marks and citation omitted). This Court has also noted that \u201c[w]hen a judgment is based on tortious conduct, bad faith, or a finding that the defendant acted intentionally or willfully, a court must award interest at the higher rate of [fifteen] percent.\u201d Diamond D Constr. Co., 2001-NMCA-082, \u00b6 55, 131 N.M. 100, 33 P.3d 651. Here, the trial court based its ruling, which granted post-judgment interest at eight and three-fourths percent, on Vincent\u2019s slander of title claim, which we have reversed. We have also, however, reversed the trial court\u2019s denial of Vincent\u2019s malicious abuse of process claim, which is based on tortious conduct. As a result, the proper post-judgment interest rate for Vincent\u2019s successful malicious abuse of process claim is fifteen percent, See id.\n4. Actual Damages\n{62} Vincent\u2019s final claim is that the trial court improperly failed to award actual damages as compensation for loss of use of the property. We review the determination of damages by the fact-finder for substantial evidence. Baxter v. Gannaway, 113 N.M. 45, 48, 822 P.2d 1128, 1131 (Ct.App.1991). Vincent argues that he provided evidence to establish that he was entitled to compensation for lost use of the property. Specifically, Vincent contends that the suit and the filing of lis pendens prevented him from being able to get a loan to build an addition to the house on his property and that the costs of building, interest rates, and city fees have increased significantly in the ensuing years.\n{63} The trial court made the following findings:\n12. Vincent Varela\u2019s construction plans were dependent on Viola Varela\u2019s adjoining property. The [c]ourt set aside Viola Varela\u2019s deed to this adjoining property in its [c]orrected [f]inal [j]udgment.\n13. After this lawsuit was filed, Vincent Varela knew that title to Viola Varela\u2019s lot next door was being challenged. He has never asked [the] architect ... to redo the drawings and remove the encroachments onto Viola Varela\u2019s lot, even after the deed to Viola Varela was set aside}.]\nOur review of the record confirms that substantial evidence supports these findings and the necessary conclusion that if Vincent\u2019s building plans were dependent on Viola\u2019s success in the ligation surrounding the deeds, Vincent suffered no actual damages that were the result of being a named defendant. He could not have commenced on the project until after the litigation regarding the deeds was resolved. We conclude that the substantial evidence supported the trial court\u2019s refusal to award actual damages to Vincent.\nIII. CONCLUSION\n{64} We reverse the trial court\u2019s conclusion that the will was the product of undue influence exerted by Viola. We further reverse the trial court\u2019s grant of Vincent\u2019s slander of title claim and the trial court\u2019s denial of Vincent\u2019s malicious abuse of process claim. We affirm the trial court\u2019s granting of attorney fees and costs, except the cost of the handwriting expert, who did not testify and was not deposed. Because Vincent received actual damages for malicious abuse of process in the form of attorney fees, we reverse the trial court\u2019s grant of nominal damages. Post-judgment interest is to be calculated at the rate of fifteen percent on Vincent\u2019s malicious abuse of process damages. We affirm the trial court\u2019s refusal to grant actual damages. We remand for entry of judgment consistent with this opinion.\n{65} IT IS SO ORDERED.\nWE CONCUR: LYNN PICKARD and MICHAEL D. BUSTAMANTE, Judges.", "type": "majority", "author": "CASTILLO, Judge." } ], "attorneys": [ "J. Ronald Boyd, Santa Fe, NM, for Edwina Chapman and Gilbert C de Baca.", "Thomas A. Simons, IV, Faith Kalman Reyes, Simons & Slattery, LLP, Timothy Vidal, Canepa & Vidal, P.A., Santa Fe, NM, for Vincent Varela and Viola Varela." ], "corrections": "", "head_matter": "2008-NMCA-108\n191 P.3d 567\nIn the Matter of the Estate of Gregoria C de Baca, Deceased. Edwina CHAPMAN and Gilbert C de Baca, Plaintiffs-Appellants/Cross-Appellees, v. Vincent VARELA, Defendant-Appellee/Cross-Appellant. and In the Matter of the Estate of Gregoria C de Baca, Deceased. Edwina Chapman and Gilbert C de Baca, Plaintiffs-Appellees, v. Viola Varela, Defendant-Appellant.\nNos. 27,069, 27,164.\nCourt of Appeals of New Mexico.\nJune 25, 2008.\nCertiorari Granted, No. 31,234, Aug. 11, 2008.\nJ. Ronald Boyd, Santa Fe, NM, for Edwina Chapman and Gilbert C de Baca.\nThomas A. Simons, IV, Faith Kalman Reyes, Simons & Slattery, LLP, Timothy Vidal, Canepa & Vidal, P.A., Santa Fe, NM, for Vincent Varela and Viola Varela." }, "file_name": "0709-01", "first_page_order": 741, "last_page_order": 762 }