Arizona Rules of Civil Procedure Rule 9(A) Interpretation
In In re Cassidy's Estate, 77 Ariz. 288, 270 P.2d 1079 (1954), Ellen Cassidy, a beneficiary of $ 4,000 under her brother Joseph Cassidy's will, later petitioned to revoke probate of the will, alleging fraud. 77 Ariz. at 290-91, 270 P.2d at 1080-81.
On appeal from dismissal of that action, our supreme court addressed, among other issues, whether Ellen had capacity to bring the action, given that she had received $ 4,000 under the will, which contained a clause forfeiting the bequest of anyone challenging the will. Id. at 298, 270 P.2d at 1085-86.
Interpreting Rule 9(a), Ariz. R. Civ. P., the court stated:
"It . . . appears that the capacity to sue need not be averred, but when challenged it must be proved." 77 Ariz. at 299, 270 P.2d at 1086. the court remanded the case to provide Ellen the opportunity to return the $ 4,000, which, the court stated, would permit her to "show her capacity" to proceed. Id.