NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In the Matter of:

The Newbanks Family Revocable Trust

Dated May 16, 1985, 

A Trust.

__________________________________ 

NANCI NEWBANKS, Petitioner/Appellant, 

v.

SCOTT H. NEWBANKS, et al., Respondents/Appellees. 

No. 1 CA-CV 21-0713 

Appeal from the Superior Court in Mohave County

No. S8015PB201900072 

The Honorable Lee Frank Jantzen, Judge

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

COUNSEL

Warner Angle Hallam Jackson & Formanek, PLC, Phoenix

By Jerome K. Elwell, Phillip B. Visnansky, Yvonne S. Tindell

Counsel for Petitioner/Appellant 

Andersen PLLC, Scottsdale

By Mark W. Hawkins, Mark Andersen 

Counsel for Respondents/Appellees

FILED 1-5-2023
NEWBANKS v. NEWBANKS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the court, in which

Judge Cynthia J. Bailey and Chief Judge Kent E. Cattani joined.

G A S S, Vice Chief Judge:

¶1 This case involves a probate and family trust dispute between 

three siblings—a daughter on one side and two sons on the other. Both 

parents have passed—mother first, then father. After father died, one of the 

sons, as trustees of the family trusts, told daughter she no longer had an 

interest in the trusts. Daughter sought relief in the superior court, but it 

rejected her claims, ruling she had violated a forfeiture clause in father’s 

will and had no remaining interest in father’s sub-trust or in property 

transferred from father’s sub-trust into mother’s sub-trust.

¶2 As explained below, we reverse and remand, concluding any 

alleged forfeiture-clause violation is irrelevant under the controlling 

documents, and daughter is entitled to an upward adjustment of her share 

of the assets in mother’s sub-trust.

FACTUAL AND PROCEDURAL HISTORY

¶3 In 1985, mother and father established the family trust. In 

2009, mother executed her will. When mother died in 2012, the family trust

created two sub-trusts: mother’s sub-trust and father’s sub-trust. 

I. Terms of the Sub-Trusts, Will, and Amendments

¶4 The parties do not dispute the terms of mother’s sub-trust. 

Mother’s sub-trust and any related terms became irrevocable upon her 

death. Even so, during father’s life, he could use the principal and assets in 

mother’s sub-trust. Upon mother’s death, her sub-trust included her share 

of the community property. In mother’s will, she left father all her personal 

effects, with each child to take one-third of the corpus of mother’s sub-trust

after father’s death.

¶5 As to father’s sub-trust, after mother died, he could add, 

amend, or revoke any term. In 2015, father executed his will and the first 
NEWBANKS v. NEWBANKS, et al.

Decision of the Court

3

amendment to his sub-trust.1 About one month before father died in 2018, 

he executed a second amendment to his sub-trust. 

¶6 Upon father’s death, his will and first amendment provided 

his sub-trust would include his share of the community property and any 

property he did not otherwise dispose of in his will or a sub-trust 

amendment. Anything remaining in father’s sub-trust would roll into—and 

be distributed under the terms of—mother’s sub-trust. Under the second 

amendment, father expressly excluded daughter and directed all his 

property to pass to sons directly from his sub-trust with nothing passing to 

mother’s sub-trust.

¶7 When father died, mother’s sub-trust was worth $360,550.

The value of father’s sub-trust at his death was the subject of the litigation. 

Father’s estate and the sub-trusts incurred $335,122 in administrative costs. 

Before the superior court ruled, sons had used the trust funds to pay

$128,400 of those administrative costs, reducing the total assets in the two 

sub-trusts by that amount. Daughter possessed some of mother’s jewelry

(which the superior court was not able to value in its entirety) and owed 

$58,000 on a loan she received from mother and father before mother died. 

One son also owed $75,000 for an early disbursement. 

II. Superior Court Rulings After Trial

¶8 After father’s death, disputes arose between daughter and 

sons, beginning when sons sent daughter a copy of the second amendment 

and told daughter she was “not a beneficiary under the Trust.” The disputes 

included whether and to what extent father’s will and the first and second 

amendments could modify mother’s sub-trust and whether sons were 

properly following the terms of father’s will and the family trust.

¶9 After trial, the superior court found four of the five 

documents controlling: the family trust, mother’s will, father’s will, and the 

first amendment. The superior court did not apply the terms of the second 

amendment, saying it was “more troublesome” because it “was written by 

one of [the sons] who benefited from the amendment . . . just a month before 

[father’s] death [and though father’s] mind was still solid, . . . the timing of 

the second amendment makes it suspect.” 

1 Father’s will and the amendments refer to the family trust’s terms. The 

parties correctly acknowledge father could only amend his sub-trust, so for 

clarity this decision refers to father’s changes as amending his sub-trust.
NEWBANKS v. NEWBANKS, et al.

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¶10 The superior court also found daughter violated the forfeiture 

clause and removed daughter as father’s heir. Specifically, the superior 

court said,

The controlling Will dated November 5, 2015 possessed a nocontest clause. The no-contest clause had been violated by 

[daughter]. She has contested the processing of this estate and 

Trust on multiple fronts. This includes filing the original 

Petition for Removal of Trustees, filing, and eventually 

withdrawing more than a dozen Declaratory Petitions and by 

generally opposing the processing of the estate by [sons].

Based on the violation of the no-contest clause,

IT IS ORDERED removing [daughter] as an heir to this 

estate.

(Emphasis in original.) The judgment did not include the same level 

of detail, but it still removed daughter “as an heir to [the] Estate.” 

¶11 The superior court relied on the first amendment to conclude 

father intended to limit daughter’s inheritance to those items listed in the 

first amendment. The superior court further ruled daughter could not share 

in any assets transferred from father’s sub-trust into mother’s sub-trust. 

¶12 As such, and despite finding father disinherited daughter 

under his will’s forfeiture clause, the superior court, based on father’s intent 

under the first amendment, awarded daughter the jewelry still in her 

possession and the amount (including interest) she owed her parents on the 

loan they extended to her. The superior court reduced daughter’s one-third 

share in mother’s sub-trust by the value of the loan and daughter’s onethird share of the probate’s attorney fees and costs. 

¶13 After adjusting for daughter’s one-third share of attorney fees 

and costs, the superior court found daughter’s share was a negative 

amount. The superior court awarded sons additional attorney fees and 

costs in an amount equal to the sons’ two-third share of the estate’s overall 

administrative expenses. In its calculations, the superior court did not 

address the reduction in mother’s sub-trust resulting from one son’s 

prejudgment disbursement of $75,000 and the prepayment of $128,400 for 

attorney fees and costs.
NEWBANKS v. NEWBANKS, et al.

Decision of the Court

5

¶14 Daughter timely appealed. This court has jurisdiction under 

article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 

and -2101.A.1.

ANALYSIS

¶15 Daughter argues she did not violate the forfeiture clause in 

father’s will or the first amendment. She also raises several issues about the 

interpretation and application of the controlling documents to mother’s and 

father’s sub-trusts.

¶16 Daughter also disputes the superior court’s mathematical 

calculations about two prejudgment disbursements: (1) an unreimbursed 

prejudgment $75,000 distribution to one son; and (2) $128,400 in attorney 

fees and costs. Those disbursements, totaling $253,400, reduced the net 

value of the monies in both sub-trusts, and the superior court did not take 

them into account when determining daughter’s final share.

¶17 This court reviews the superior court’s legal conclusions de

novo. In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5 (App. 2000). When this 

court reviews findings entered after a bench trial, it views “the facts in the 

light most favorable to upholding the [superior] court’s ruling.” Bennett v.

Baxter Grp., Inc., 223 Ariz. 414, 417, ¶ 2 (App. 2010). This court “will not set 

aside the probate court’s findings of fact unless clearly erroneous, giving 

due regard to the opportunity of the court to judge the credibility of 

witnesses.” Id. A finding of fact is not clearly erroneous if substantial 

evidence supports it. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51–52, ¶ 11 

(App. 2009). This court does “not reweigh conflicting evidence” but rather 

examines “the record only to determine whether substantial evidence 

exists” to support the superior court’s ruling. In re Estate of Sibley, 246 Ariz. 

498, 501, ¶ 13 (App. 2018) (quoting In re Estate of Pouser, 193 Ariz. 574, 579, 

¶ 13 (1999)).

I. Whether daughter violated the forfeiture clause is irrelevant 

because it does not apply to mother’s sub-trust.

¶18 Daughter argues she did not violate the forfeiture clause in 

father’s will and his sub-trust. We agree. Most of daughter’s filings related

to sons’ handling of both sub-trusts, not their “validity or legal 

effectiveness.” To the extent she did challenge the “validity or legal 

effectiveness” of father’s documents, she prevailed in establishing her right 

to distributions from mother’s sub-trust. Even so, sons’ arguments on the 

forfeiture clause miss the mark because any violation would not impact 

daughter’s share of mother’s sub-trust.
NEWBANKS v. NEWBANKS, et al.

Decision of the Court

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A. Under the first amendment’s plain language, father’s subtrust rolled into mother’s sub-trust.

¶19 This case involves interpreting terms in a will, a trust, and a 

trust amendment. “The rules of construction that apply in this state to 

the interpretation of and disposition of property by will also apply as 

appropriate to the interpretation of the terms of a trust and the disposition 

of the trust property.” A.R.S. § 14-10112.

¶20 In construing a will or a trust, this court’s goal is to determine 

the trustor’s intent. See In re Estate of King, 228 Ariz. 565, 567, ¶ 9 (App. 2012);

In re Estate of Zilles, 219 Ariz. 527, 530, ¶ 8 (App. 2008); In re Estate of Daley, 

6 Ariz. App. 443, 447 (1967). Still, this court interprets a will or a trust 

according to its terms. See KAZ Constr., Inc. v. Newport Equity Partners, 229 

Ariz. 303, 305, ¶ 7 (App. 2012); In re Trust Estate of Will, 8 Ariz. App. 591, 

594 (1968). When the language of a will or trust is plain, the court will not 

look beyond the document’s four corners to determine the grantor’s

intent. See Zilles, 219 Ariz. at 530, ¶ 9; see also Pouser, 193 Ariz. at 579, ¶ 10 

(holding extrinsic evidence is inadmissible to contradict a will’s plain 

language).

¶21 If a written instrument creates the trust, this court determines 

the trustor’s intent from the express language of the instrument. State ex rel.

Goddard v. Coerver, 100 Ariz. 135, 141 (1966). This court “consider[s] the text 

of the trust ‘as a whole and, when appropriate, the circumstances at the time 

it was executed.’” Zilles, 219 Ariz. 530, ¶ 8 (quoting Pouser, 193 Ariz. at 578,

¶ 10 (interpreting a will)); see also Restatement (Third) of Trusts § 4 cmt. a 

(2003) (noting a trustor’s intent is determined as of the time of creation of 

the trust). To that end, this court considers the trust’s “general plan or 

scheme.” See In re Estate of Gardiner, 5 Ariz. App. 239, 240 (1967). Even so, 

this court must not go beyond the plain language of the trust “in an attempt 

to give effect to what it conceives to have been” the trustor’s “actual intent 

or motive.” Taylor v. Hutchinson, 17 Ariz. App. 301, 304 (1972).

¶22 With the above in mind, our analysis begins with the first 

amendment’s direction to transfer father’s sub-trust into mother’s sub-trust 

and ends with the family trust’s direction to distribute all assets in mother’s 

sub-trust equally among the three surviving children. Because those 

controlling documents are unambiguous, their plain language controls. See

Zilles, 219 Ariz. at 530, ¶ 9; see also Pouser, 193 Ariz. at 579, ¶ 10.

¶23 Sons concede father could not amend the terms of mother’s 

sub-trust because it was irrevocable upon her death in 2012. As for the 
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Decision of the Court

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jewelry, sons agree father’s attempt to substitute the jewelry he owned for 

any portion of what daughter was owed under the terms of mother’s 

irrevocable sub-trust—such as ”the residences, investment and bank 

accounts”—“arguably was beyond his discretion as Trustee and was 

invalid.”

¶24 The same is true of the loan. The first amendment’s 

unambiguous terms directed the trustee to add “[a]ll remaining principal 

and undistributed income” in father’s sub-trust to mother’s sub-trust. As 

such, the first amendment was consistent with the family trust, which 

(upon father’s death) moved any “remaining principal and undistributed 

income” from father’s sub-trust to mother’s sub-trust. The superior court 

had to account for the value of the jewelry and the loan as assets in mother’s 

sub-trust. And the three children were to divide mother’s sub-trust equally.

B. The forfeiture clause could not affect any distribution under 

father’s and mother’s sub-trusts.

¶25 Sons argue daughter was disinherited from father’s estate and 

his sub-trust when the superior court enforced the forfeiture clause against 

daughter. As a result, sons assert, daughter could not take any share of the 

funds transferred from father’s sub-trust into mother’s sub-trust. As 

support, sons rely on father’s expressed intent to disinherit daughter in the 

second amendment even though the superior court did not find that 

document controlling. 

¶26 Sons do not challenge the superior court’s finding the second 

amendment was not controlling. Instead, they argue daughter is wrong in 

saying the superior “court determined the Second Amendment to be 

invalid,” and sons then argue this court should consider the second 

amendment as an “additional ground[]” to support the superior court’s 

ruling. To that end, they simply argue this court “should consider the 

Second Amendment as valid to the extent it supports the probate court’s 

[j]udgment.” 

¶27 We conclude otherwise. Father’s intent in the non-controlling 

second amendment cannot alter the plain language of the first amendment 

and mother’s sub-trust. See Taylor, 17 Ariz. App. at 304 (holding court 

cannot go beyond plain language “in an attempt to give effect to what it 

conceives to have been” the trustor’s “actual intent or motive”). The same 

is true to the extent sons argue this court should extend father’s intent to 

disinherit anyone who violated the forfeiture clause. We cannot use father’s 

intent to broaden the plain language of those controlling documents. See id.
NEWBANKS v. NEWBANKS, et al.

Decision of the Court

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II. The superior court must address (1) the unreimbursed $75,000 

distribution to one son; (2) the probate estate’s prepaid attorney 

fees and costs; and (3) the $58,000 loan to daughter held in father’s 

sub-trust and transferred to mother’s sub-trust.

¶28 Daughter raises three more issues. First, daughter argues one 

son received an additional $75,000 distribution, which the superior court 

did not include in the combined value of the sub-trusts. Second, daughter 

argues the superior court made a similar error when it determined the total 

value of the sub-trusts without adjusting for the $128,400 sons paid in 

attorney fees and costs. Sons do not dispute these alleged errors, instead 

they argue the errors make no difference. But the errors affect the total asset 

value in mother’s sub-trust and thus the final distribution amounts. Sons 

also argue daughter waived the errors, but evidence and daughter’s 

argument at trial addressed the calculation error regarding the one son’s 

unreimbursed $75,000 distribution, and the court’s error regarding attorney 

fees did not arise until it entered judgment. Because daughter preserved the 

issues in her opening brief, waiver does not apply. See Harris v. Cochise 

Health Sys., 215 Ariz. 344, 349, ¶ 17 (App. 2007). 

¶29 Third, daughter argues the superior court should not have 

reduced her share of mother’s sub-trust by the $58,000 she owed on the 

amount loaned her by her parents before they died. But when father’s subtrust rolled into mother’s sub-trust, the receivable became an asset in 

mother’s sub-trust. See supra ¶ 25. As such, much like the $75,000 early 

distribution one son owes mother’s sub-trust, mother’s sub-trust holds 

daughter’s receivable as an asset transferred from father’s sub-trust. On 

remand, the superior court also must count the receivable as an asset of 

mother’s sub-trust.

III. The superior court must consider any award of attorney fees and 

costs based on this decision.

¶30 Because daughter has prevailed on appeal, we reverse the 

superior court’s award of attorney fees and costs and remand the issue to 

the superior court to determine an appropriate award, if any, of attorney 

fees and costs based on this decision. 

IV. We decline to award attorney fees either to sons or to daughter but 

award daughter her costs.

¶31 Sons ask for an award of attorney fees and costs on appeal 

under A.R.S. § 12-349 (appeal lacks substantial justification, is brought to 

harass, or unreasonably expands the proceedings) and ARCAP 25
NEWBANKS v. NEWBANKS, et al.

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(frivolous appeal). Because daughter prevailed on appeal, we deny sons’ 

request.

¶32 Daughter seeks an award of attorney fees and costs on appeal 

under A.R.S. § 14-11004.B. Subsection 14-11004.B gives this court discretion 

to award “a party’s reasonable fees, expenses and disbursements.” This 

court may make such an award if it relates to a “good faith defense or 

prosecution . . . involving the administration of the trust, regardless of 

whether the defense or prosecution is successful.” See A.R.S. § 14-11004.A. 

In our discretion, we deny daughter’s request for attorney fees.

¶33 As the prevailing party, we award daughter her costs upon 

compliance with ARCAP 21.

CONCLUSION

¶34 For the above reasons, we reverse and remand for further 

proceedings consistent with this decision.