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. AFFIRMED IN PART;
VACATED IN PART
& 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
Judge Lawrence F. Winthrop delivered the opinion of the
Court, in which Judge Jennifer B. Campbell and Judge Paul J.
1] Ernest F. Mashler ("Ernest") appeals
from the superior courts judgment denying
his petition to partition certain real property
("Farmland") and approving the restatement of his
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 decedents 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
3] Accordingly, we affirm the courts denial of
Ernests petition to partition the Farmland but vacate the
courts 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").
5] When Phil died in 2004, Lucilles 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 Lucilles
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.
7] Upon Lucilles 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. ...