IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of the Estate of:

LUCILLE F. SIBLEY, Decedent.

_________________________________

JOHN S. MASHLER, et al., Petitioners/Appellees,

v.

ERNEST F. MASHLER, Respondent/Appellant.

No. 1 CA-CV 17-0369

Appeal from the Superior Court in Yuma County

No. S1400PB201500108

The Honorable Roger A. Nelson, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

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

FILED 7-26-18
MASHLER, et al. v. MASHLER

Opinion of the Court

2

OPINION

Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court, 

in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

W I N T H R O P, Presiding Judge:

¶1 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.

¶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 

 

1 We cite the current versions of all applicable statutes as no revisions 

material to this opinion have since occurred.
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Opinion of the Court

3

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. John and Christine 

were the remaining co-trustees of the Trust.

¶8 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 Farmland.

¶9 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 

 

2 Patricia Sibley Knott is not a party to this appeal.
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Opinion of the Court

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appealed from the judgment, and we have jurisdiction pursuant to Article 

6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21(A)(1), and 

-2101(A)(9).

ANALYSIS

I. Statute of Limitations

¶10 As a preliminary matter, John and Christine argue that Ernest 

was barred from contesting the validity of the Trust by A.R.S. § 14-10604(A). 

That statute provides, in relevant part, that “[a] person may commence a 

judicial proceeding to contest the validity of a trust that was revocable at 

the settlor’s death within . . . [o]ne year after the settlor’s death.” A.R.S. 

§ 14-10604(A)(1) (emphasis added). Here, the Trust became irrevocable 

upon Phil’s and Lucille’s deaths. Therefore, § 14–10604, which applies to 

revocable trusts, did not preclude Ernest from contesting the validity of the 

Trust.

¶11 John and Christine additionally argue that A.R.S. § 14-3306

also prohibits Ernest from contesting the Trust. Section 14-3306 prohibits 

an heir “from commencing a formal testacy proceeding to contest the 

probate of the will after four months have elapsed” following receipt of 

information regarding informal probate of a will. A.R.S. § 14-3306(B). John 

and Christine’s brief, however, fails to explain how this statute applies to 

bar Ernest’s petition to partition the Farmland or his objection to John and 

Christine’s petition to restate the Trust. See ARCAP 13(a)(7) (requiring 

“supporting reasons for each contention” with citations to legal 

authorities). Accordingly, they have waived this argument on appeal. See 

Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6 (App. 2007) (explaining 

that a party who fails to develop and support an argument waives that issue 

on appeal). Further, Ernest did not commence a formal testacy proceeding 

to contest the probate of the Will; simply stated, § 14-3306 does not apply.

II. Construction of the Will

¶12 In appealing the denial of his motion to partition the 

Farmland, Ernest first argues the superior court improperly interpreted the 

Will “as directing that the Farmland be held in trust.”

¶13 The “cardinal rule” of will construction is to ascertain the 

intent of the testator from the words of the will. See Newhall v. McGill, 69 

Ariz. 259, 262 (1949). On appeal, we review any legal issues raised de novo,

and apply “the appropriate legal standard to the facts found” by the 

superior court. In re Estate of Shumway, 198 Ariz. 323, 326, ¶ 9 (2000). “[W]e 
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do not reweigh conflicting evidence” but rather “examine the record only 

to determine whether substantial evidence exists” to support the court’s 

ruling. In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13 (1999).

¶14 Lucille’s intent regarding the disposition of her “liquid 

assets” is easily ascertained from the language of the Will. She stated that 

the assets “shall be divided into three equal shares and distributed free of 

trust” to Ernest, Christine, and John. Her intent regarding the Farmland 

was expressed differently. She indicated that it was her “desire” that the 

Farmland “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. She further expressed her “desire” that the 

Farmland not be sold until her youngest great-grandchild turned twentyone.

¶15 The phrase “I desire” is “precatory,” which means

“requesting, recommending, or expressing a desire rather than a 

command.” Precatory, Black’s Law Dictionary (10th ed. 2014). A precatory 

trust is “[a] trust that the law will recognize to carry out the wishes of the 

testator or grantor even though the statement in question is in the nature of 

an entreaty or recommendation rather than a command.” Precatory trust, 

Black’s Law Dictionary (10th ed. 2014). The issue we must resolve is 

whether Lucille’s words placed the Farmland in the Trust.

¶16 More than seventy-seven years ago, the Arizona Supreme 

Court addressed the effect of precatory language in a will. The court 

interpreted a will that provided:

It is my wish, though this is not a restriction or a limitation 

upon the use and enjoyment of the legacies and bequests 

herein made, that my estate, after the payment of my debts, 

the cash bequests and expenses of administration, shall be 

kept among the descendants of my late father and mother.

In re Hayward’s Estate, 57 Ariz. 51, 58 (1941). Our supreme court concluded 

that this language constituted “a recommendation or request directed to 

legatees and devisees” rather than a command. Id. at 60. In reaching this 

conclusion, however, the court acknowledged “many cases” in which 

precatory language is properly “construed as dispositive.” Id. at 58. The 

court cited with approval a California case holding that “[w]here the words 

are used to describe a disposition of property, that is, where they are 

directed to the executor or to the law, and not to a devisee or legatee, the 

authorities are uniform that the word [‘desire’] is sufficient to declare a 
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Opinion of the Court

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disposition of the property.” Id. at 59 (quoting In re Tooley’s Estate, 149 P. 

574, 575 (Cal. 1915)).

¶17 Several years later in Newhall v. McGill, our supreme court 

explained how a court should determine whether precatory language 

creates a trust:

[I]n order that a trust may arise from the use of precatory 

words, the court must be satisfied, from the words 

themselves, taken in connection with all the other terms of the

disposition, that the testator’s intention to create an express 

trust was as full, complete, settled, and sure as though he had 

given the property to hold upon a trust declared in the 

ordinary manner.

69 Ariz. at 263 (citing Fields v. Fields, 3 P.2d 771, 773-74 (Or. 1931)); see In re 

Conness’ Estate, 73 Ariz. 216, 218-19 (1952) (concluding that “for the 

education of” was a precatory phrase that did not create a trust, but was 

instead “only an expression of a wish or desire on the part of the testator to 

the legatees as to how they should use the bequest”); see also In re Rowlands’ 

Estate, 73 Ariz. 337, 340 (1952) (“Precatory words directed to an executor 

indicate a trust while the same words to a devisee do not”) (citing Newhall, 

69 Ariz. 259).

3

¶18 After carefully reading the language of the Will, we conclude 

that the evidence supports the superior court’s finding that, Lucille’s words 

regarding the disposition of the Farmland, examined with the other terms 

of the Will, reflect her intent to hold the Farmland in further trust. Her 

words “it is my desire” are not directed to her devisees but to the personal 

representative of her estate. Unlike the testator in Hayward’s Estate, Lucille 

did not include qualifying language stating that her desire should not be 

construed as “a restriction or limitation.” And, most importantly, the Will 

reflects Lucille’s intent to dispose of her “liquid assets” separately and 

differently from the Farmland. She expressly directed that her liquid assets

be distributed “free of trust.” If Lucille wanted the same disposition for the 

 

3 The Missouri Court of Appeals recently articulated the rule set forth

in Newhall. See Day v. Hupp, 528 S.W.3d 400, 414 (Mo. Ct. App. 2017)

(reasoning that a trust will arise from the use of precatory words only if the 

court is “satisfied from the words themselves, considered in connection 

with all the other terms of the disposition, that the grantor’s intention to 

create a trust was as complete and certain as if she had given the property 

to hold in a trust declared in the ordinary manner”).
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Opinion of the Court

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Farmland, she would have so stated. Instead, she addressed the Farmland 

separately and expressed her will that it be held in “further trust.”

¶19 On appeal, Ernest argues that the superior court’s ruling 

contradicts the testimony of Stephen Shadle, the attorney who drafted the 

Will. Although it is true that Shadle testified that the word “desire” was 

precatory and not obligatory, his testimony was contradicted by a letter he 

sent following Lucille’s death that stated, “I think the time for closing the 

Trust and selling is about ten years out,” and that he needed “to get great 

grandchildren birth dates nailed down to get the exact date.” The letter

suggests Shadle’s pre-litigation understanding that the Farmland should be 

held in “further trust.” It is not for this Court to reweigh conflicting

evidence. See In re Estate of Pouser, 193 Ariz. at 579, ¶ 13.

¶20 We conclude that the language of the Will supports the 

superior court’s finding that Lucille intended the Farmland to be held in 

trust until her youngest great-grandchild, alive at the time of Lucille’s 

death, reaches the age of twenty-one. Accordingly, we affirm the court’s 

denial of Ernest’s petition to partition the Farmland.4

III. Restatement of the Trust

¶21 Ernest next argues that the superior court erred in approving 

John and Christine’s restatement of the Trust pursuant to A.R.S. § 14-10819. 

He asserts that the power to appoint under § 14-10819 arises only when “the 

trustee has ‘discretion’ with respect to trust asset or income distributions,” 

and that the Trust here did not provide such discretion. We agree.

¶22 Section 14-10819 provides, in part:

Unless the terms of the trust instrument expressly provide 

otherwise, a trustee who has the discretion under the terms 

of a testamentary instrument or irrevocable inter vivos 

agreement to make distributions, regardless of whether a 

 

4 Ernest’s petition also asserted that Lucille’s testamentary power of 

appointment violated the rule against perpetuities set forth in A.R.S. § 14-

2901(A), because she directed that the Farmland not be sold until her 

youngest great-grandchild reached the age of twenty-one. The superior 

court found that the language of the Will could “be construed to apply to 

the youngest great-grandchild then living at the time of Lucille’s death.” 

Ernest has not challenged this ruling on appeal. Accordingly, we do not 

review the superior court’s finding.
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Opinion of the Court

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standard is provided in the trust instrument to or for the 

benefit of a beneficiary of the trust, may exercise without 

prior court approval the trustee’s discretion by appointing 

part or all of the trust property in favor of a trustee of another 

trust.

A.R.S. § 14-10819(A) (emphasis added).

¶23 Section 14-10819(A) grants a trustee the power to “decant” an 

irrevocable trust under certain conditions. As explained by the Uniform 

Law Commission, decanting refers to “the distribution of assets from one 

trust into a second trust, like wine is decanted from the bottle to another

vessel.”5 A trustee with decanting power has “authority to amend an 

unamendable trust, in the sense that he or she may distribute the trust 

property to a second trust with terms that differ from those of the original 

trust.” Morse v. Kraft, 992 N.E.2d 1021, 1024 (Mass. 2013) (citation omitted).

¶24 The rationale behind decanting is that “if a trustee has 

discretion to distribute trust property to or for the benefit of a beneficiary, 

the trustee in effect has a limited power of appointment in favor of the 

beneficiary and thereby can appoint the property to a new or existing trust 

for the benefit of that beneficiary.” Alan S. Halperin, Zoey F. Orol, Modern 

Variations on an Ancient Theme: Fundamental Changes in Trust Law-Part II, 

N.Y. St. B.J. 25, 26 (March/April 2017). Thus, it is a trustee’s discretionary

authority to make distributions in favor of a beneficiary that provides the 

premise for decanting. See William R. Culp, Jr., Briani Bennett Mellen, Trust 

Decanting: An Overview and Introduction to Creative Planning Opportunities, 

45 Real Prop. Tr. & Est. L.J. 1 37-38 (2010). Based on this rationale, Arizona’s 

statute, like those of other states, requires that a trustee have the power to 

make discretionary distributions for the benefit of a beneficiary under the 

terms of the original trust. See A.R.S. § 14-10819(A); see also Ferri v. PowellFerri, 72 N.E.3d 541, 553-54 n.12 (Mass. 2017) (citing decanting statutes from 

twenty-seven states).

6

 

5 The Uniform Trust Decanting Act, A Summary, 

http://www.uniformlaws.org/shared/docs/trustdecanting/UTDA%20-

%20Summary.pdf

6 The Uniform Trust Decanting Act likewise authorizes decanting 

only when the trust confers discretionary distribution powers. See UNIFORM 

TRUST DECANTING ACT, §§ 11, 12 (UNIF. LAW COMM’N 2015).
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Opinion of the Court

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¶25 We have reviewed the Trust here and find no evidence that 

John and Christine, as trustees, have discretion to make distributions for the 

benefit of the beneficiaries, who include themselves. Prior to Lucille’s 

death, the trustees had discretion to distribute principal for the benefit of 

Lucille’s “maintenance, support, health and well being.” Upon Lucille’s

death, the trustees had discretion to draw upon the principal to cover any 

funeral expenses and death taxes. However, the Trust provides no 

authority for the trustees to make discretionary distributions for the benefit 

of the beneficiaries following Lucille’s death.

¶26 John and Christine cite Article IV(B) of the Trust, which 

provides that, upon Lucille’s death, the trustees:

[S]hall distribute the then remaining principal and 

undistributed income to or hold the same for the benefit of 

such person or persons or the estate of [Lucille] in such 

amounts and proportions, for such estates and interests, and 

outright, or upon such terms, trusts, conditions and 

limitations as [Lucille] shall appoint by a Will referring 

specifically to this power of appointment.

This provision directs John and Christine to distribute or hold the Trust 

principal and income in compliance with Lucille’s Will. It does not grant 

John and Christine discretion over the distribution of principal or income.

¶27 Alternatively, John and Christine argue “that the 

discretionary power need not come directly from the testamentary 

instruments themselves.” We disagree. Section 14-10819 expressly requires 

that the trustee’s discretion come from “the terms of a testamentary 

instrument or irrevocable inter vivos agreement.” A.R.S. § 14-10819(A).

¶28 Because the Trust does not grant John and Christine the

discretion to make distributions for the benefit of the beneficiaries, they did

not have the authority to restate the Trust pursuant to § 14-10819.

Accordingly, we vacate that portion of the superior court’s judgment. The 

original Trust remains in effect. If the parties wish to modify the Trust 

going forward, they must follow the appropriate statutory procedure. See

A.R.S. § 14-10410.

IV. Attorneys’ Fees

¶29 John and Christine request an award of attorneys’ fees on 

appeal pursuant to A.R.S. § 14-11004, which provides:
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Opinion of the Court

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A. A trustee . . . is entitled to reimbursement from the trust 

for that person’s reasonable fees, expenses and disbursement, 

including attorney fees and costs, that arise out of and that 

relate to the good faith defense or prosecution of a judicial 

. . . proceeding involving the administration of the trust, 

regardless of whether the defense or prosecution is successful.

B. A court . . . may order that a party’s reasonable fees, 

expenses and disbursements pursuant to subsection A be 

paid by any other party or the trust that is the subject of the 

judicial proceeding.

A.R.S. § 14-11004. We grant John and Christine’s request for an award of 

reasonable attorneys’ fees and costs on appeal to be paid by the Trust 

pursuant to § 14-11004(A) but deny their request for fees against Ernest 

personally pursuant to § 14-11004(B).

CONCLUSION

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

denial of Ernest’s petition to partition the Farmland but vacate the court’s 

approval of the restated trust. We award John and Christine their 

reasonable attorneys’ fees and costs on appeal upon their timely compliance 

with Arizona Rule of Civil Appellate Procedure 21.