In re the Matter of the Estate of: LUCILLE F. SIBLEY, Decedent.
ERNEST F. MASHLER, Respondent/Appellant. JOHN S. MASHLER, et al., Petitioners/Appellees,
from the Superior Court in Yuma County No. S1400PB201500108
The Honorable Roger A. Nelson, Judge.
& Wilk, P.C., Phoenix By Kathi M. Sandweiss, Roger L.
Cohen Co-Counsel for Petitioners/Appellees
Garner Law Firm, Yuma By Adam D. Hansen Co-Counsel for
Dickinson Wright, PLLC, Phoenix By Michael J. Plati Counsel
Presiding Judge Lawrence F. Winthrop delivered the opinion of
the Court, in which Judge Jennifer B. Campbell and Judge Paul
J. McMurdie joined.
WINTHROP, Presiding Judge.
Ernest F. Mashler ("Ernest") appeals from the
superior court's judgment denying his petition to
partition certain real property ("Farmland") and
approving the restatement of his mother's trust.
We address in this opinion whether precatory language in a
will directed to a personal representative or executor rather
than devisees creates an enforceable instruction. We hold
that, read with the other provisions of a will, precatory
language may create an enforceable directive rather than a
discretionary request. Additionally, we conclude that the
trial court erred in approving a restatement of the
decedent's trust, permitting the trustees to
"decant" an otherwise irrevocable trust. We hold
that, pursuant to Arizona Revised Statutes
("A.R.S.") section 14-10819(A), a trustee has
discretion to decant- the authority to appoint or distribute
trust property to a new or different existing trust with
terms that differ from those of the original trust-only when
the trust instrument expressly provides.
Accordingly, we affirm the court's denial of Ernest's
petition to partition the Farmland but vacate the court's
order approving restatement of the trust.
AND PROCEDURAL HISTORY
In 1986, Lucille F. Sibley ("Lucille") and her
husband, Phillip R. Sibley ("Phil"), created the
Phil R. Sibley & Lucille F. Sibley Trust (the
"Trust"), which became irrevocable upon their
deaths. Lucille and Phil had one child together, Patricia
Sibley Knott, and Lucille had three children by a prior
marriage, Ernest, Christine Wolleson ("Christine"),
and John Mashler ("John").
When Phil died in 2004, Lucille's separate property and
her share of the community property were allocated to
"Trust A." When Lucille died in 2015, the Trust
directed that the remaining principal and income of Trust A
be distributed pursuant to the terms of Lucille's Last
Will and Testament (the "Will").
The Will directed that:
[A]ll liquid assets of Trust "A"
shall be divided into three equal shares and distributed free
of trust to: [Ernest, Christine, and John, ] or their issue
per stirpes. It is my desire that the real property
([F]armland) which is part of Trust "A" .
. . be held in further trust and that the income of such
[F]armland, after the payment of expenses to keep it in
trust, be divided equally among [Ernest, Christine, and John,
] or their issue per stirpes. Unless required to satisfy the
administration of my estate . . . I desire that the
[F]armland not be sold until my youngest great-grandchild
reaches the age of twenty-one. At such time, the
proceeds of which would be distributed equally to [Ernest,
Christine, and John, ] or their issue per stirpes.
Upon Lucille's death, John applied to superior court for
the informal probate of the Will and appointment of a
personal representative. The court appointed John as personal
representative. John and Christine were the remaining
co-trustees of the Trust.
Approximately one year later, John petitioned the superior
court to approve the exercise of his and Christine's
power, pursuant to A.R.S. § 14-10819, to restate the
terms of the Trust. He asserted that the Trust "was
outdated and lacked modern administrative provisions."
Christine later joined the action. Ernest objected to their
petition and filed his own petition seeking to partition the
After a hearing on both petitions, the superior court entered
a judgment (1) denying Ernest's petition to partition the
Farmland and (2) approving John and Christine's
restatement of the Trust. Ernest timely appealed from the
judgment, and we have jurisdiction pursuant to Article 6,