IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In the Matter of:

ROBERT E. WULF, Deceased.

DEBORA A. BARROW, et al., Petitioners/Appellees,

v.

RON WULF, Respondent/Appellant.

No. 1 CA-CV 16-0317

Appeal from the Superior Court in Maricopa County

No. PB2010-070797

The Honorable Frank W. Moskowitz, Judge

AFFIRMED

COUNSEL

Warner Angle Hallam Jackson & Formanek, PLC, Phoenix

By Jerome K. Elwell, Phillip B. Visnansky

Counsel for Respondent/Appellant

Gorman & Jones, PLC, Sun City

By Andrew P. Gorman

Co-Counsel for Petitioners/Appellees

Padish & Wells, PLLC, Scottsdale

By James E. Padish

Co-Counsel for Petitioners/Appellees

FILED 10-12-2017
WULF v. BARROW, et al.

Opinion of the Court

2

OPINION

Judge James P. Beene delivered the opinion of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop

joined.

B E E N E, Judge:

¶1 Ron Wulf, trustee for the Wulf Family Support Trust, Wulf 

Family Trust, and Wulf Irrevocable Trust (collectively, the “Trusts”), 

appeals the superior court’s finding that probable cause supports 

beneficiaries’ Arizona Adult Protective Services Act (“APSA”) claim, and 

thus, did not trigger the in terrorem clauses in the Trusts. Wulf contends 

that each factual allegation giving rise to a claim challenging an in terrorem 

clause must be supported by probable cause. Because A.R.S. § 14-2517 

requires only that the beneficiaries’ claim—and not each of the underlying 

factual allegations—be supported by probable cause, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Each of the Trusts contain an in terrorem clause.1 In October 

2013, beneficiaries of the Trusts, Debora Barrow and Kathi Wulf 

(“Beneficiaries”), petitioned to remove Wulf as trustee. Beneficiaries 

amended the petition in April 2014 to add an alleged violation of APSA. 

Ariz. Rev. Stat. (“A.R.S.”) § 46-456 (2017).2 Beneficiaries asserted seven

factual allegations of financial exploitation in support of their APSA claim:

 

1 Two of the in terrorem clauses are identical, and the third has the 

same effect as the other clauses. An in terrorem clause, or no-contest 

clause, is a provision that threatens to dispossess any beneficiary who 

challenges the terms of a trust or will. Black’s Law Dictionary 1073 (8th 

ed. 2004). An in terrorem clause is invalid as a matter of law if probable 

cause supports the beneficiaries’ claim challenging the trust or will. A.R.S. 

§ 14-2517 (2017).

2 Absent material revisions after the relevant date, we cite a statute’s 

current version.
WULF v. BARROW, et al.

Opinion of the Court

3

(1) $200,000 withdrawn from a bank account, which is 

unaccounted for;

(2) proceeds from the sale of real property owned by the 

Trusts amounting to $120,790.64 are unaccounted for;

(3) $20,000 withdrawn from a bank account, which is 

unaccounted for;

(4) A $11,351.52 purchase and installation of solar panels;

(5) Wulf opened a bank account and added the vulnerable 

adult to the account;

(6) A $10,990.14 check was issued from the Trusts to Wulf 

Urethane, Inc.;

(7) A $7,000 check issued to a law firm.

¶3 Wulf counterclaimed seeking to enforce the in terrorem

clauses of the Trusts. Beneficiaries then filed a motion for partial 

summary judgment seeking to invalidate the in terrorem clause, but the 

superior court denied the motion, ruling that the Beneficiaries’ complaint 

“trigger[ed] the in terrorem provisions of the three trusts.” The superior 

court also ruled that there were disputed issues of material fact regarding 

whether Beneficiaries had probable cause, as required by A.R.S. § 14-2517, 

for their APSA claim.

¶4 The superior court ordered a bifurcated trial to determine 

whether there was probable cause for the Beneficiaries’ APSA claim. 

Before the bifurcated trial, this court issued its opinion in In re Shaheen 

Trust, 236 Ariz. 498 (App. 2015). In a motion in limine, Wulf contended 

that under Shaheen, all of Beneficiaries’ allegations must be supported by 

probable cause.

¶5 After oral argument, the superior court determined that “the 

parties and the Court have always treated the Beneficiaries’ claim that 

triggers the in terrorem clause as one claim[.]” Therefore, the court ruled 

that the Beneficiaries “need only establish ‘probable cause’ for [the APSA 

claim as a whole] and not for each and every allegation that may support 

that claim.” Alternatively, and in the event Shaheen would bar 

Beneficiaries’ claim, the superior court determined that Shaheen did not 

retroactively apply.

¶6 After an evidentiary hearing, the court ruled that “most of 

the contested allegations . . . do not give rise to ‘probable cause,’” but 

found that Beneficiaries, “by the thinnest of margins,” had shown 

probable cause for their APSA claim. At Wulf’s request, the court entered
WULF v. BARROW, et al.

Opinion of the Court

4

partial final judgment on that decision pursuant to Arizona Rule of Civil 

Procedure 54(b).

¶7 Wulf timely appealed the superior court’s ruling. We have 

jurisdiction pursuant to A.R.S. § 12-120.21(A)(1) (2017).

DISCUSSION

¶8 Wulf argues that the superior court erred in its application of 

Shaheen and finding that it does not apply retroactively. Whether the 

superior court erred in its interpretation of Shaheen is a question of law, 

which we review de novo. Enter. Leasing Co. of Phx. v. Ehmke, 197 Ariz. 144, 

148, ¶ 11 (App. 1999).

¶9 In Shaheen, beneficiaries of a trust containing an in terrorem

clause “filed a petition alleging multiple claims of breach of trust.” 236 

Ariz. at 499, ¶ 2. The beneficiaries’ petition “contained a multitude of 

allegations, which the trial court distilled into nine separate claims of 

breach of trust.” Id. at 501 n.3, ¶ 13 (internal quotations omitted). The 

beneficiaries, however, did not appeal the characterization of their 

allegations as claims. Id. In response, the trustee filed a counter-petition 

requesting the beneficiaries’ interest in the trust be forfeited pursuant to 

the in terrorem clause. Id. at 499-500, ¶ 2. The superior court denied the 

trustee’s counter-petition, holding that the in terrorem clause was 

unenforceable. Id. This court reversed, holding that the in terrorem clause 

was enforceable, and “there must have been probable cause for each of the 

[beneficiaries’] nine claims.” Id. at 500, ¶ 7. Citing public policy, 

including the cost of litigation and the donative intent of the transferor, 

this court reasoned:

When a party brings nine claims against a trustee, as the 

[beneficiaries] have done here, that party litigates nine 

different challenges, and, accordingly, contests nine separate 

claims. If these nine claims had been presented in nine 

separate petitions, there would be no question that probable 

cause would have to support each claim to avoid forfeiture. 

We see no reason for a different result merely because the 

claims were asserted in a single petition.

Id. at 501, ¶ 9.

¶10 Wulf incorrectly construes Shaheen to require that all 

allegations of financial exploitation be supported by probable cause. On 

the contrary, Shaheen held that all claims must be supported by probable 
WULF v. BARROW, et al.

Opinion of the Court

5

cause, but did not apply that same standard to their underlying 

allegations.

¶11 Interpreting Shaheen as requiring parties to support each 

factual allegation with probable cause is contrary to A.R.S. § 14-2517. This 

statute provides that an in terrorem clause is unenforceable “if probable 

cause exists for that action.” A.R.S. § 14-2517 (emphasis added). 

Ordinarily, an action is “any matter or proceeding in a court, civil or 

criminal.” A.R.S. § 1-215(1) (2017); see also Semple v. Tri-City Drywall, Inc., 

172 Ariz. 608, 611 (App. 1992) (“The common definition of action is a 

proceeding in a court of justice by which one demands or enforces one’s 

right.”) (internal citation and quotations omitted). If the Legislature 

intended to require probable cause exist for each allegation, rather than 

the entire suit, it would have explicitly said so. See Orca Commc’ns 

Unlimited, LLC v. Noder, 236 Ariz. 180, 182, ¶ 10 (2014). Instead, the 

Legislature used “action.” Under § 14-2517, Beneficiaries are not required 

to demonstrate probable cause for each factual allegation.

¶12 Wulf contends that each allegation of financial exploitation 

is a separate claim by Beneficiaries. However, a plain language 

interpretation of the word “claim” further evidences the fact that Wulf 

misconstrues Shaheen.

¶13 Neither APSA nor Title 46, chapter 4 of the Arizona Revised 

Statutes defines “claim.” Therefore, we turn to the ordinary meaning of 

the word and look to the dictionary for guidance. See DBT Yuma, L.L.C. v. 

Yuma Cty. Airport Auth., 238 Ariz. 394, 396, ¶ 9 (2015). A “claim” 

ordinarily means a “cause of action.” Resolution Trust Corp. v. W. Tech., 

Inc., 179 Ariz. 195, 201 (App. 1994). On the other hand, an allegation can 

mean something quite different, such as a “declaration that something is 

true; esp., a statement, not yet proved, that someone has done something 

wrong or illegal.” Black’s Law Dictionary 81 (8th ed. 2004).

¶14 Here, Beneficiaries asserted as a claim a violation of APSA, 

and sought financial and equitable remedies. The APSA violation was the 

claim because it provided the statutory grounds for the relief sought by 

Beneficiaries. The violation of APSA was based on allegations that Wulf 

misused or appropriated over $370,000 worth of the Trusts’ property. The 

allegations of financial exploitation were just that—allegations. They were 

declarations of Wulf’s wrongdoing, giving rise to Beneficiaries’ APSA 

claim. And as the superior court noted, the court and the parties “always 
WULF v. BARROW, et al.

Opinion of the Court

6

treated the Beneficiaries’ claim that triggers the in terrorem clause as one 

claim – an [APSA] claim.” 3

CONCLUSION

¶15 For the foregoing reasons, we affirm the superior court’s 

decision.

 

3 Because Shaheen does not require Beneficiaries to have all 

factual allegations underlying a claim be supported by probable cause, we 

need not address the superior court’s retroactivity analysis.