McCauley v. Talk

¶1In this will contest, proponent, Cleyburn Faris McCauley, appeals from the order of the trial court refusing to admit to probate a document purporting to be the last will and testament of Bond Sneed Mc-Cauley, deceased. Upon notice of proponent’s offer in probate of the purported *10will, contestants, Arthur Talk, Jr. and Lillian Denson, by their respective fathers as guardians ad litem, filed with the Court their petition opposing probate of the will. Thereafter, the matter proceeded as a “Contest of Will Before Probate” pursuant to A.R.S. §§ 14-351 to 14-356.

¶2The matter was tried before the Court, sitting without a jury. Proponent did not attend the' trial' in person. Thereafter, the Court which made extensive findings of fact and conclusions of law, found that the purported will was procured by the fraudulent representations and undue influence of the proponent, and entered judgment in favor of contestants.

¶3Decedent died in Phoenix on October 21, 1959. She had married proponent on October 28, 1957. Decedent had been married twice before her marriage to proponent, each of the former marriages ending in divorce. Contestant Arthur Talk, Jr. was born as the issue of the marriage ■of decedent and Arthur Talk, Sr. Contestant Lillian Denson was born as the issue of the marriage of decedent and Vernon Denson. The purported will names proponent as independent executor without bond and, after leaving him specific items such as household furnishings and personal effects, bequeaths and devises the rest and residue of testatrix’ estate as follows: an ifridivided one-half to contestants, share and share alike, and the other remaining undivided one-half to proponent. The will in question was executed on November 18, 1958, while decedent was hospitalized.

¶4Proponent’s third and fourth assignments of error question the sufficiency of the evidence to sustain the Court’s finding that proponent unduly influenced decedent to execute the purported will. In particular, proponent urges that the evidence is insufficient to show that he was active in procuring the execution of the will or that decedent’s will was overpowered so that proponent could make her wishes and desires conform to his own.

¶5The basic concept emerging from the mass of decisions on the subject of undue influence is that a person unduly influences a testator or testatrix in executing a will when that person through his power over the mind of the testator or testatrix makes the latter’s desires conform to his own, thereby overmastering the volition of testator or testatrix. In re Reddaway’s Estate, 214 Or. 410, 329 P.2d 886 (1958) ; In re Blake’s Will, 21 N.J. 50, 120 A.2d 745 (1956); In re Jennings’ Estate, 335 Mich. 241, 55 N.W.2d 812 (1952). See generally, 1 Page, Wills §§ 15.1 to 15.3 (Bowe-Parker edition, 1960); 6 Powell, Real Property ¶ 948 (1958). Since undue influence is commonly exercised in secret, it may be established by circumstantial evidence. In re Westfall’s Estate, 74 Ariz. 181, 185, 245 P.2d 951, 954 (1952). Whether undue influence has been exerted to bring about the making of a particular will is a question of fact. See In re Urich’s Estate, 194 Or. 429, 242 P.2d 204 (1952). The burden of proving that a will has been procured by undue influence is on the contestant. In re Westfall’s Estate, 74 Ariz. 181, 245 P.2d 951 (1952).

¶6In determining whether a contestant has estabished that a will has been procured through undue influence, certain factors have been treated as significant indicia of the presence or absence of such influence. See In re Reddaway’s Estate, supra; 6 Powell, Real Property, supra. These factors include the following: Whether the alleged influencer has made fraudulent representations to the testatrix; 1 whether the execution of the will was the product of hasty action;2 whether the execution of.the will was concealed from others;3 whether the person benefited by the will was active in securing its drafting *11and execution; 4 whether the will as drawn was consistent or inconsistent with prior declarations and plannings of the testatrix;5 whether the will was reasonable rather than unnatural in view of the testatrix’ circumstances, attitudes, and family;6 whether the testatrix was a person susceptible to undue influence;7 and whether the testatrix and the beneficiary have been in a confidential relationship.8 Some confidential relationships in conjunction with other basic facts, such as proponent’s activity in procuring the execution of the will and his being named as its principal beneficiary, give rise to a presumption of undue influence. In re Pitt’s Estate, 88 Ariz. 312, 356 P.2d 408 (1960); In re O’Connor’s Estate, 74 Ariz. 248, 246 P.2d 1063 (1952) 9 The parties have suggested in their briefs that the presumption of undue influence is involved in this case. But the marital relationship existing between testatrix and proponent is not one of the confidential relationships giving rise to the presumption of undue influence. Craig v. Lamoureaux, [1920] A.C. 349 (P.C., Can.1919) ; In re Livingston’s Will, 5 N.J. 65, 73 A.2d 916 (1950). Accordingly, here the burden of proving undue influence remained with the contestants.

¶7However, proponent’s marriage to testatrix does not completely insulate him from a possible finding that he unduly influenced his spouse in executing her will. See Estate of Teel, 25 Cal.2d 520, 154 P.2d 384 (1944) ; Taylor v. Taylor, 248 S.W.2d 820 (Tex.Ct. Civ.App.1952).

¶8Where the contestant has presented evidence from which a reasonable person could conclude that the person charged with exerting undue influence had a disposition to exercise such influence, that he had an opportunity to exercise undue influence, that some influence was exerted, and that the will seems to result from such influence, a question of fact is presented. In re Roehl’s Will, 261 Wis. 466, 53 N.W.2d 180 (1952).

¶9Although none of the enumerated factors standing alone or even in combination with some others, may be sufficient to sustain a finding of undue influence,10 the force of the combination of all these factors may be sufficient to raise a question of fact as to the existence of undue influence. In re Burton’s Estate, 45 So.2d 873, 875-876 (Fla. 1950); In re Reddaway’s Estate, 214 Or. 410, 329 P.2d 886 (1958).

¶10*12It therefore becomes important to analyze the evidence relied upon by contestants and questioned by proponents to determine whether, in accordance with the foregoing principles, it is sufficient to sustain the trial court’s finding that the purported will was procured by the undue influence of proponent.

¶11Fraudulent Representations

¶12In the late summer of 1956 proponent lived in Enid, Oklahoma, with his third wife, Mrs. Leona McCauley, and his two children. He was then self-employed in the advertising business. When this business failed shortly thereafter, leaving proponent in debt by $1,000, he became “panicky” and moved to Houston, Texas, “to get started again.”

¶13While proponent was in Houston, he met decedent in November of 1956. Shortly after their meeting proponent prevailed upon her to loan him $750. Thereafter, they did not see each other until March, 1957, at which time proponent falsely represented to decedent that he was separated from his wife and had been so separated for some time before he went to Houston. In fact, he made frequent trips to Enid during this period of time and during these visits his marital relationship with his wife was normal.

¶14By 1956 decedent had decided to institute action to obtain a divorce from her second husband, Vernon Denson. As a result of the divorce proceeding and the property settlement incident thereto, an irrevocable trust was established, naming decedent as an income beneficiary to the extent of $2,000 per month tax free during her life, and upon her death, to her children in equal shares upon each reaching the age of thirty.

¶15Within two weeks of her divorce decedent began to see proponent frequently. By early April, 1957, decedent had cosigned a $1,000 note with proponent for his benefit.

¶16On or about May 1, 1957, proponent, through decedent, attempted to sell a real estate note to the trust; the principal balance due on the note was $7,100 and proponent offered to sell the note for $7,000. The real estate note was then subject to a $2,500 discount, but proponent informed neither decedent nor the trustees of this discount. Proponent was to receive $1,000 from the owner of the note for selling it to decedent’s trust. Upon decedent’s presenting the note to Mr. Simmer, one of the trustees, and Simmer’s expressing a desire to inquire about the note further, proponent demanded that the note be returned to .him immediately. Decedent then wrote to Mr. Simmer stating that there was no strong feeling between herself and proponent and requesting Mr. Simmer not “to discuss it with any of the other trustees. It would only get back to my family and get them upset and for no cause since I did not get involved in it.”

¶17Sometime in May, 1957, decedent moved from her mother’s home into an apartment. Proponent then began visiting decedent at her apartment, spending most of the day and evening there.

¶18In mid-July, 1957, decedent wrote to Mr. Simmer, requesting that the trustees authorize her purchase of a new car. At first, the trustees acceded to this request. However, when the trustees learned that decedent was not trading in her 1955 Oldsmobile on the purchase price of a 1958 model car but was planning to sell her Oldsmobile to proponent for $100, the price proponent had told decedent she would get for her car on a trade-in, they refused to authorize the purchase. In September, 1957, proponent traded in decedent’s 1955 Oldsmobile for $2,000 toward the purchase price of a car purchased in his name.

¶19Shortly thereafter, proponent convinced decedent that the trust res would be dissipated by the trustees and her ex-husbands, thus persuading decedent to consult an attorney to attempt to revoke the trust.

¶20'During the summer of 1957 proponent experienced an apparent seizure, during which he represented to decedent that he was a messenger to her from somebody in *13Heaven. Mrs. Lupear, an old friend of decedent’s testified that decedent had confided to her that she, decedent, believed in communications from spirits.

¶21Decedent continued living in her Houston apartment until August 13th or 14th, 1957. At that time she discharged her servants who had been with her for six years, telling them that she could no longer afford to pay them. Prior to that time decedent had never indicated to her servants that she was lacking in money to pay them or to run her household. Decedent appeared to be dazed on this occasion and also appeared to be sorry to see her servants leave. Proponent admitted that he had suggested to decedent that she get rid of these servants because they were costing too much

¶22On August 15, 1957, proponent went to San Antonio, Texas to see his friend, Anton G. Choban, who was moving from San Antonio to San Marcos on that day. Proponent told Choban that he was doing his best to help decedent to revoke her trust and promised Choban that if he would give proponent and decedent shelter in Choban’s home, Choban would have a lifetime income once decedent regained control of her wealth. In return for this promise, Choban permitted decedent, proponent, and Lillian, decedent’s daughter, to move into his San Marcos home on August 15th or 16th. Shortly after moving into this home proponent arranged for decedent to purchase Choban’s equity in a home in Houston for a $1,000 down payment, which was to be Choban’s “immediate relief,” plus a $3,000 note made by decedent. Proponent then asked Choban to make additions and improvements to the San Marcos home. When Choban asked how these changes were to be financed, proponent told Choban to make decedent think that proponent was handling her affairs properly so that the improvements could be made with decedent’s money while she would be led to believe that the payments were being used to discharge her indebtedness to Choban. However, proponent assured Choban that he and Choban had a side agreement, unknown to decedent, so that these payments would not be credited against decedent’s indebtedness to Choban and that Choban would eventually be paid the full value of the note.

¶23In September, 1957, decedent instituted action to revoke the trust. The decision on this action was adverse to decedent. Mc-Cauley v. Simmer, 336 S.W.2d 872 (Tex. Ct.Civ.App.1960). On October 28, 1957, proponent obtained a divorce from his former wife, Mrs. Leona McCauley. On the same day proponent and decedent were married. Because of proponent’s and decedent’s cohabitation in the presence of her daughter, Lillian, prior to their marriage, decedent’s second husband brought a successful habeas corpus action in 1958 to obtain custody of his daughter, Lillian, Proponent later falsely represented to decedent that her mother had bribed the judge and jury to decide the custody case adversely to her. Proponent also falsely told decedent that her step-father had stolen the inheritance she was to receive from her grandmother and natural father.

¶24The evidence related above was sufficient to warrant the trial court in finding that proponent made such fraudulent representations to decedent. By the means of these representations proponent attempted to obtain control over decedent and to alienate decedent from her family, friends, and the trustees she had chosen to manage her property, in order to supplant her confidence in these people and promote his own advantage.11 The trial court in its findings of fact found that this pattern of continuing fraudulent representations evidenced a preconceived, deliberate and continuing scheme, device, plan and artifice, by proponent to acquire, alienate and dissipate decedent’s estate with complete disregard to the minor son and daughter of decedent. *14His finding in this respect is not “clearly erroneous” and thus cannot be set aside. Rule 52(a), Rules of Civil Procedure, 16 A.R.S.

¶25Will Product of Hasty Action

¶26Attorney Theodore Kirchheimer testified that decedent called him from the hospital shortly before the will was signed and asked him to draw a will. Kirchheimer said that he suggested that decedent have another attorney, Mr. Atkinson, who had introduced Kirchheimer to the McCauleys, draw the will. On the same day decedent called Mr. Atkinson with regard to his preparing a will. Atkinson never visited the hospital to confer with decedent about the provisions of the will, although he had visited decedent there with regard to other matters. He testified that decedent gave him over the telephone the outline of the will, to which she later made minor changes. When decedent indicated her satisfaction with the final draft, Atkinson instructed Mrs. Fuller, Kirchheimer’s secretary, to take the will to the hospital to have it executed. The execution was accomplished in the afternoon of November 18, 1958 in approximately ten minutes.

¶27Significantly, Atkinson testified that in his conversations with decedent with regard to the will he did not discuss with her the extent of her property either in or outside the trust, whether she had ever executed any prior wills, the ages of her children and that if she were to die while they were minors, leaving property to them outright, guardians would have to be appointed for them, or that, because her children were minors, she should consider setting up a trust to protect the property she was leaving them, even though decedent on prior occasions had told Atkinson that she desired to set up another trust for her children if she could revoke her present trust.

¶28It is also significant that both Atkinson and proponent learned, shortly before the preparation of the will, that decedent had a serious kidney disease.

¶29Execution of Will Concealed

¶30Following the execution of the will, it was placed in Kirchheimer’s office safe from which it was eventually released to proponent on one of his trips to Houston after he and decedent had moved to Phoenix.

¶31The only people who had any knowledge that decedent had executed the will were the two witnesses, (neither of whom knew her prior to the execution of the will), Mrs. Fuller, Mr. Atkinson, Mr. Kirchheimer, and proponent. Neither decedent’s mother nor her two children, all of whom were living in Houston, were informed that decedent had executed a will.

¶32Activity in Procuring Drafting and Execution of Will

¶33From substantial evidence the following facts are established: Proponent obtained from decedent a holographic will early in 1958 leaving him half of her property. He was advised by his lawyers that the holographic will was not worth the paper it was written on. Proponent and decedent subsequently discussed the terms of the will currently in qaestion prior to execution. Proponent called on Atkinson prior to the execution of the will, told Atkinson that he and decedent had discussed the terms of the will, and told Atkinson to draft a will in accordance with those terms as related to Atkinson by decedent. Atkinson read the terms of the will to proponent after the will had been drafted but prior to its execution. Proponent was told to absent himself from the hospital at the time of execution. Proponent inquired about a will to leave him all of decedent’s property, although he was informed by Atkinson that such a will probably would not withstand contest. Atkinson and proponent discussed the probable validity of the will in question as against contest and concluded that such a will had a better chance of success than a will leaving all of decedent’s property to proponent. These facts are sufficient for the court to find an active participation in procuring the *15drafting and execution of the will in question.

¶34Inconsistency of Will with Other Plannings and Declarations

¶35Prior to the drafting of the will in question, decedent in 1944, 1947, and 1955 had had Mr. Platt, an attorney who had known her since childhood, draft wills for her. Each of these prior wills contained elaborate trust provisions for her minor children upon her death. The will in question, however, contains no such trust provisions for her children, although, as noted, she had mentioned such a trust to Mr. Atkinson on several occasions prior to the preparation of this will. The 1944 will leaves no property to decedent’s former husband, Arthur Talk, Sr., although decedent and Talk were not divorced until 1946. Decedent’s 1955 will left no property to Vernon Denson from whom decedent was at that time separated.

¶36Decedent’s avowed purpose, repeatedly expressed by her, in setting up the inter vivos, irrevocable, spendthrift trust incident to her divorce from Denson was to avoid any repetitions of the marital difficulties and property settlements she had experienced in the past. She wished to insure that any man who was attracted to her in the future would be attracted solely by reason of affection and love and not by attraction to her money. Decedent stated her reasons .for establishing the trust in a letter written within a few days after her divorce from Denson as follows:

“I did it because I don’t want to have to go through any more property settlements with any — if any — future husbands. I also did not want my children to be subjected to what I have experienced in the past.”

¶37Within a month or two after the execution of the will in question, proponent and decedent visited her friend, Mrs. Lupear. While there, decedent informed Mrs. Lu-pear that she had mentioned Mrs. Lupear’s daughter, decedent’s godchild, in her will. Her will, executed in 1955 does provide for a gift to Mrs. Lupear to be used for Mrs. Lupear’s daughter, but the will in question makes no such provision. Decedent then turned to proponent and said to him, “ ‘You know I can’t leave you anything.’ ”

¶38In letters written by decedent to her children in 1959 decedent explained that her purpose in setting up her inter vivos trust was “to protect the three of us.” She indicated that her purpose in bringing suit to revoke the trust was to “save” her property for her children.

¶39In contrast to these declarations of decedent’s purpose, ante-dating and postdating the execution of the will, the purported will leaves one-half of the residue of decedent’s estate to proponent, and attempts, in so far as the will would be legally effective to do so, to revoke her inter vivos trust and to authorize proponent to continue litigation to revoke that trust, without providing for a substitute trust for her children. Viewed from the vantage point of the time of execution, this will, if the directions to revoke the trust were effective, would have devised and bequeathed one-half of decedent’s large fortune, including the property which was in her trust, to proponent. This pattern of distribution would be entirely inconsistent with decedent’s oft-repeated purpose to exclude husbands — including jproponent — from sharing in her property and to preserve that property for her minor children. If the will in quéstion were to be admitted to probate, only the decision adverse to proponent in the trust litigation would prevent him from taking one-half of the trust property that decedent was attempting to “save” for her minor children.

¶40"Reasonableness” or “Unnaturalness” of wai

¶41To minimize confusion in the usage of the ambiguous terms “unnatural” and “reasonable”, we quote the following passages which give content to these terms

“Respondents also’ make much of the contention that the will constituted what *16they claim is an ‘unnatural disposition’ of decedent’s property as supporting the idea that the will was procured by undue influence. That depends a good deal upon the interpretation placed upon the words ‘unnatural disposition.’ ‘In a legal . sense a will is unnatural only when contrary to what could be expected of the particular individual in question, considering the type of man he was as manifested by his views, his feelings, his intentions and the like. When natural by this test, it cannot be said to be unnatural in the legal sense, however much it may differ in his dispositions from those ordinary men make in similar circumstances.’ [Citing cases]” In re Lavelle’s Estate, 122 Utah 253, 265, 248 P.2d 372, 378 (1952)

- “Of course, the will here disregarded to a great extent the testator’s heirs at law; that is, his brother and the two children of his deceased sister, and left the bulk of his estate to one wholly unrelated to him. If the jury found that such a disposition was unjust and unreasonable, then that disposition would be circumstantial evidence tending to prove undue influence. … Whether the disposition was unjust and unreasonable was a question of fact for the jury and depended to a considerable extent on what the jury found, from the evidence, was the testator’s true relationship with, and feeling toward, his heirs at law, on the one hand, and [the proponent] on the other hand.” Lancaster v. Bank of New York, 147 Conn. 566, 574, 164 A.2d 392, 396 (1960).

¶42Thus, the question whether this will is “unnatural” or “unreasonable” entails a subjective rather than an objective test. That is to say, based upon what is known of this particular testatrix, does the will in question represent the type of will which one would expect her to execute?

¶43Relevant here is the evidence to the effect that decedent had shown a fixed intention, to leave her property in trust -for her children and to exclude her husbands from taking her property. Another unusual feature of this will is that it names proponent as sole independent executor, whereas in each of decedent’s prior wills she had provided for multiple executors and trustees and also provided for the replacement of any such executor or trustee who became unable to act. One other unusual feature of this will can be noted, namely, that testatrix should attempt to dispose of her large estate in a will containing only a page and a half of simple provisions as contrasted to her prior wills which attempted to dispose of this estate in very complex and carefully considered provisions, being respectively eight, eleven, and thirteen pages in length.

¶44Based on these facts, the trial court could properly conclude that the will in question is not the type of will which one would expect this particular testatrix to execute.

¶45Was Decedent a Person Susceptible to Undue Influence

¶46Witness George Hill testified that decedent from the time he knew her when the two of them were classmates in grade school was imprudent with men. Hill testified that decedent’s weakness in this respect was founded in large part on the fact that as a child decedent was a very lonely person. Decedent’s old friend, Mrs. Lupear, also testified that decedent was not a strong minded person where men were concerned. She testified that she and decedent had discussed this fact on several occasions. Mrs. Lupear testified that during one of these discussions after decedent had been separated from Vernon Denson, decedent said to her:

“ ‘I’m tired of putting my ex-husbands up in business. It’s going to make them wealthy men, just for being married to me for a few years. … I want to do something that will see that no more husbands get any of my money. … I don’t plan on getting married again, but .1 — if I should where men are concerned, I have no control when they ask for *17something; I give it to them, and I want something set up so that I can’t change my mind.’ ”

¶47Anton Choban testified that during 1957 while decedent and proponent were staying at his home prior to their marriage “Mrs. Denson was completely in Mr. McCauley’s hands.”

¶48Other evidence tending to show decedent’s susceptibility to undue influence concerns her chronic illnesses and physical condition. Mr. Simmer testified that during the period when he had frequent contacts with the decedent as his client in reference to her divorce from Denson that he noticed that decedent appeared to be chronically ill, often losing her equilibrium. Moreover, decedent’s servant, Willie D. Fulleylove, testified that one of the reasons he didn’t want to leave decedent in August, 1957, was that “She was a very sick girl.” He testified that decedent had been chronically ill over the years he had known her and that “She wasn’t a real well person.”

¶49As we noted above, at the time of the execution of the will in question decedent was hospitalized as the result of an automobile accident and a flare-up of her kidney disease. Mrs. Eulalie Hermann, one of the witnesses to the will and an employee of the hospital, testified that she had ascertained from hospital records that decedent’s kidney disease was “something prolonged that she had had for years.” Contrary to the testimony of Mrs. Marjorie Fuller who testified that decedent was out of bed and walking around the room at the time of executing the will, Mrs. Sara Goodman Coel and Mrs. Eulalie M. Hermann testified that decedent was propped up in her hospital bed and signed the will on a table that could be rolled up over the bed.

¶50In addition to the testimony of the witnesses to the will we have the testimony of Atkinson and proponent referred to earlier to the effect that they had learned prior to the execution of the will in question that decedent was suffering from a serious kidney disease, so serious that proponent testified that decedent’s doctor told him, “Actually I don’t know what, she may live six months, she may live five years, she may outlive all of us.”

¶51Based on these facts showing decedent’s weakened physical condition and her weakened resistance to the influence of men, the finder of the facts could properly conclude that decedent at the time of the execution of the will was a person particularly susceptible to undue influence.

¶52In view of all the foregoing evidence and the principles referred to above, there was sufficient evidence at least to raise a question of fact as to whether proponent procured the execution of the will by decedent through undue influence. Faced with the task of finding the facts, the trial court found that the will in question had been procured by the undue influence of proponent. Since his finding in this regard is not “clearly erroneous”, it cannot be set aside by us on appeal. Rule 52(a), Rules of Civil Procedure.

¶53In his first and second assignments of error proponent claims (1) that the trial court found that the will was invalid on the ground that it had been procured by the fraudulent misrepresentations of the proponent, which was a theory not pleaded or relied upon by the contestants, and (2) that the trial court erred in granting contestants’ motion to amend their complaint to conform to the proof to allege a theory not in issue at the trial, namely, that proponent made fraudulent representations to decedent. Since these contentions are two sides of the same coin, we shall treat them together as proponent did on oral argument and as contestants have in their brief.

¶54Rule 15(b), Rules of Civil Procedure provides for an automatic amendment of pleadings to conform to proof as to issues tried by express or implied consent and also permits the granting of a motion to amend a pleading to conform to proof unless the objecting party can show actual, as distinguished from legal surprise. 2 Moore, Federal Practice ¶ 8.05, pp. 1626-1627 (2d ed. 1964).

¶55*18After judgment the court granted contestants’ motion to amend their complaint to conform to proof by adding allegations of false representations as the means by which proponent exerted his undue influence over decedent.

¶56Proponent urges that the trial court’s order granting this motion to amend was erroneous. For several reasons we disagree. First, the alleged lack of timeliness of contestants’ motion is not a proper ground for denying it inasmuch as Rule 15 (b) expressly provides that such motion may be made by any party at any time “even after judgment.” Second, although fraud and undue influence are separate and distinct theories for invalidating a will, as we noted above, fraudulent representations made to a testatrix by a will’s beneficiary are properly considered as relevant facts to show that a will was procured by the undue influence of that beneficiary exercised by him in part by means of such fraudulent representations. In re Garibaldi’s Estate, 57 Cal.2d 108, 17 Cal.Rptr. 623, 367 P.2d 39 (1961). Third, it would be error for the trial court to refuse to allow an amendment of a pleading to conform to proof on the ground, which proponent suggests, that the amendment would be a change in theory. Robbins v. Jordan, 86 U.S.App.D.C. 304, 181 F.2d 793 (1950). Fourth, at trial proponent did not object to the introduction of evidence showing proponent’s fraudulent representations on the ground that such evidence was not within the issues framed by the pleadings. His only objection was a continuing one on the grounds of lack of materiality and relevancy. In light of our previous discussion on the materiality and relevancy of fraudulent representations to show undue influence, this objection was not valid. Failure to object to the introduction of evidence on the ground that it is not within the issues is sufficient to imply consent to try such issues. O’Malley v. United Producers & Consumers Corp., 95 Ariz. 134, 387 P.2d 1016 (1963); 3 Moore, Federal Practice ¶ 15.13 [2] (2d ed. 1964).

¶57Finally, proponent has failed to show how the amendment to conform to proof would prejudice, i. e., surprise, him in maintaining his defense on the merits as Rule 15(b) required him to do. Since the bulk of the testimony showing proponent’s fraudulent representations to decedent was contained in depositions, including some which proponent himself set and noticed, it is difficult to see how he did not have notice that this proof would be introduced at trial and that he would be required to meet it. Rule 15(b) itself provides protection for a litigant who is surprised by proof offered at trial. He can object to the introduction of such evidence on the ground that it is not within the issues and if he satisfies the court that he would be prejudiced in presenting his case on the merits by the admission of such evidence, he may ask the court to grant a continuance to enable him to meet such evidence.12 The cases cited by proponent are readily distinguishable from the case at bar. Mullen v. Gross, 84 Ariz. 207, 326 P.2d 33 (1958) holds simply that when a complaint alleges a fact and the answer admits the existence of that fact, there is no issue of fact between the parties as to that matter and the court cannot raise an issue of fact where there is none. Drumm v. Simer, 68 Ariz. 319, 205 P.2d 592 (1949) did not involve a granting by the court of a motion to amend to conform to proof.

¶58Proponent’s fifth and final assignment of error is an amalgam of different allegations which when analyzed, can be reduced to two essential contentions, viz., that the evidence was insufficient to sustain the trial court’s findings and that the evidence relating to fraudulent representations was not properly before the court. We have previously discussed these contentions and find them to be without merit.

¶59Affirmed.

¶72(concurring) .

¶73The trial judge could have found from a consideration of all the evidence and the reasonable inference to be drawn therefrom that this was not the normal case of devotion and affection which one spouse usually holds for the other. Almost from the time McCauley first met decedent he sought to obtain money from her. Long before they were married decedent supplied Mc-Cauley with funds with which to take her out. At one time she loaned him $750. At another time she co-signed a $1,000 note with him for his benefit. He tried to acquire her automobile worth $2,000 for $100 and endeavored to sell to the trustees of her trust a $7,100 note for $7,000 when in fact the note had been discounted by $2,-500.

¶74It is possible to conclude that McCauley’s relationship with decedent was one of almost continuous misrepresentations. In addition to the outright fraud involved in the instance of the foregoing note, McCauley represented to decedent that her stepfather and the trustees of the trust were cheating her, facts which were wholly untrue. Because of these misrepresentations, many of decedent’s closest friends and advisors were alienated from her.

¶75At the time when decedent first met McCauley, she lived with her mother. Some five or six months later she moved out of her mother’s residence. McCauley misrepresented to decedent that her mother had bribed the jurors in the habeas corpus case by paying them each $1,000. Their relationship became so estranged that decedent’s mother sided with decedent’s former husband when he sought, successfully, to obtain the custody of decedent’s minor daughter by reason of the misconduct of McCauley with decedent. McCauley even prevailed upon decedent to discharge her household servants of many years employment. Finally, he moved with her to Phoenix where she died.

¶76McCauley arranged with decedent to engage an attorney who had known Mc-Cauley and his father and brother but had never met decedent. This attorney was employed to break the trust which decedent had set up for the benefit of her two children. He also drew the will here questioned in this litigation. This will was signed one year after McCauley’s marriage to decedent. It left fifty per cent of her estate to him. The reason it did not leave the entire estate to him was because one of the attorneys advised that there would be a better chance of resisting a will contest if McCauley were given less than the whole.

¶77This is a case which establishes that from the beginning McCauley dominated this woman, who admittedly had a weakness for men, to his own financial benefit. It taxes my credulity far beyond the breaking point to believe that this domination did not amount to undue influence.