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In re Estate of Sibley

Court of Appeals of Arizona, First Division

July 26, 2018

IN RE the Matter of the ESTATE OF: Lucille F. SIBLEY, Decedent.
v.
Ernest F. Mashler, Respondent/Appellant. John S. Mashler, et al., Petitioners/Appellees,

Page 806

          Appeal from the Superior Court in Yuma County, No. S1400PB201500108, The Honorable Roger A. Nelson, Judge. AFFIRMED IN PART; VACATED IN PART

         Jaburg & Wilk, P.C., Phoenix, By Kathi M. Sandweiss, Roger L. Cohen, Co-Counsel for Petitioners/Appellees

         Deason Garner Law Firm, Yuma, By Adam D. Hansen, Co-Counsel for Petitioners/Appellees

          Dickinson Wright, PLLC, Phoenix, By Michael J. Plati, Counsel for Respondent/Appellant

         Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

          OPINION

         WINTHROP, Presiding Judge:

         [¶ 1] Ernest F. Mashler ("Ernest") appeals from the superior court’s judgment denying

Page 807

his petition to partition certain real property ("Farmland") and approving the restatement of his mother’s trust.

         [¶ 2] 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)[1], 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.

         [¶ 3] 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.

          FACTS AND PROCEDURAL HISTORY

         [¶ 4] 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").[2]

         [¶ 5] 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").

         [¶ 6] 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.

(Emphasis added.)

         [¶ 7] 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. ...


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