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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

        O'HARA FAMILY TRUST SECOND AMENDMENT AND
          RESTATEMENT OF THE O'HARA FAMILY TRUST,

     DONALD HOGAN; MICHAEL HOGAN and LOIS MACLEOD,
                   Petitioners/Appellants,

                                         v.

  ROBERT N. O'HARA, JR.; SUSAN A. O'HARA; and TERI L. DUNNE,
                     Respondents/Appellees.

                              No. 1 CA-CV 15-0059
                                FILED 6-21-2016


            Appeal from the Superior Court in Maricopa County
                           No. PB2013-002007
                The Honorable Edward W. Bassett, Judge

                       REVERSED AND REMANDED


                                    COUNSEL

Ryley Carlock & Applewhite, Phoenix
By Clarke H. Greger, John C. Lemaster, Philip J. Jang
Counsel for Petitioners/Appellants
Buchalter Nemer, Scottsdale
By J. Noland Franz, Roger W. Hall
Counsel for Respondents/Appellees



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco joined. Judge Kenton D. Jones dissented.


J O H N S E N, Judge:

¶1           The sister and children of Joan O'Hara (collectively, "the
Hogans") appeal the superior court's entry of summary judgment in favor
of Robert O'Hara and his children (collectively, "the O'Haras"), dismissing
the Hogans' claim for reformation of a trust. For the following reasons, we
reverse the summary judgment and remand the matter to the superior
court.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Robert and Joan O'Hara were married in 1975.1 Each had
children from a previous marriage. In January 1986, Robert and Joan
established the O'Hara Family Trust. Under the trust, when the first spouse
died, three sub-trusts would be created. The surviving spouse's separate
property and that spouse's portion of the community property were to be
placed in a "survivor's trust." The remaining assets were the decedent-
spouse's separate property and his or her portion of the community
property. Of those, some were to be placed in a marital-deduction
"qualified" trust; the rest were to be placed in a so-called "bypass trust." The
surviving spouse was to maintain control over the survivor's trust. The
survivor also was to receive all income from the qualified and bypass trusts
and could draw on the principal of the qualified and bypass trusts for his
or her "support, maintenance and health." When the surviving spouse died,
the qualified and bypass trusts were to be distributed to Robert's and Joan's



1      We view the evidence and all reasonable inferences to be drawn
therefrom in the light most favorable to the party opposing a motion for
summary judgment. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003).



                                       2
                      HOGAN et al. v. O'HARA et al.
                         Decision of the Court

descendants or their spouses "as appointed under the surviving [spouse's]
will."

¶3             Ten years later, Robert and Joan amended and restated their
trust. The 1996 amendment retained the surviving spouse's rights to control
the survivor's trust, to receive the income from the qualified and bypass
trusts and to draw from the principal of the qualified and bypass trusts as
appropriate for his or her "health care, maintenance and support." But the
1996 amendment changed the allowable distribution of the principal
remaining in the qualified and bypass trusts upon the death of the second
spouse. Although the 1986 Trust would have allowed the surviving spouse
to direct the distribution of the assets remaining in the qualified and bypass
trusts to the descendants of either or both spouses, the 1996 amendment
provided that, upon his or her death, the surviving spouse could appoint
qualified and bypass trust assets only to the descendants of the first deceased
spouse. The 1996 amendment further specified that although the surviving
spouse would be free to amend or revoke the terms of the survivor's trust,
the qualified and bypass trusts "shall be irrevocable," subject to these
provisions.

¶4             In 2011, Joan was diagnosed with ALS. Her primary caregiver
after she was diagnosed, and as the disease progressed, was her sister Lois,
who lived with her and Robert. Early in 2012, with Joan's health
significantly failing, Joan's adult son Don traveled to Arizona to spend the
final weeks of his mother's life with her. He was present in January, when
Joan and Robert met with a lawyer about a second amendment to their
trust.

¶5            Joan had told Don on at least 10 occasions that when she and
Robert died, the contents of their trust would be divided equally between
her children and Robert's children. Joan told him in late November 2011
that they were going to amend the trust, and that it was Robert's idea.
Robert was the one who contacted the lawyer about changing the trust; Joan
told Don she didn't know why the trust needed to be amended. On January
5 or 6, 2012, she told Don she "was actually a little upset" about Robert's
plan to amend their trust again and "she didn't understand why changes
needed to be made." Joan told Don that she "wasn't even sure what was in
the second amendment." Don further testified: "[Joan] said she didn't know
why [the trust] needed to be changed. . . . [T]hat there was nothing that
needed to be changed."

¶6            Robert made an appointment with a lawyer for January 11,
2012, for him and Joan to sign the amended trust. The appointment was at


                                      3
                      HOGAN et al. v. O'HARA et al.
                         Decision of the Court

the office of Karen Sinchak-Higby ("Sinchak"), a lawyer who had prepared
the original trust and the 1996 amendment. Don drove the couple to the
appointment and sat in the meeting with them and the lawyer. By then,
Joan was greatly suffering in the advanced stages of ALS. She was
wheelchair-bound, on oxygen and had extreme difficulty speaking. It was
almost certain that she would be the first of the two spouses to pass. Robert
testified he did not believe Joan read the 2012 amendment before she signed
it, nor had anyone read it to her. Nor did Joan ask any questions during the
signing meeting.

¶7            During that meeting, Sinchak told Robert, Joan and Don that
under the new amendment, after one spouse died, the assets would be split
into two trusts, a survivor's trust and a bypass trust. Sinchak said the
surviving spouse would have 100 percent access to the survivor's trust, but
would be able to access the bypass trust only in the event of "dire need."
Sinchak further told the group that upon the death of the surviving spouse,
the assets of the trusts would be combined and divided, with 45 percent
going to Joan's children, 45 percent going to Robert's children, and ten
percent divided between Joan's sister Lois and Robert's sister. Sinchak did
not inform the group that the 2012 amendment would allow the surviving
spouse to alter the provisions of the trust, and she did not say anything
about a power of appointment that would allow the survivor to distribute
the assets to whomever he or she wanted.

¶8            The 2012 amended and restated trust contained the same
powers found in the 1996 amendment that granted the surviving spouse
control over the survivor's trust and also allowed the surviving spouse to
draw down the principal of the bypass trust for the survivor's "healthcare,
maintenance and support." The 2012 trust, however, contained a new
provision not present in any earlier version of the trust, by which the
surviving spouse could distribute the principal of the bypass trust to
anyone he or she might choose (other than the survivor or his or her
creditors):

      [T]he Trustee shall distribute such amounts of the principal to
      any one or more persons other than the Surviving Trust
      Creator and his or her creditors, in such portions and on such
      terms as the Surviving Trust Creator appoints by a written
      instrument specifically referring to this power of
      appointment.

The 2012 trust further provided that assets remaining in the qualified and
bypass trusts would not necessarily pass to the first-deceased spouse's


                                     4
                      HOGAN et al. v. O'HARA et al.
                         Decision of the Court

children when the second spouse died. Instead, the 2012 trust granted the
surviving spouse the power to make an appointment, effective at the time
of his or her death, of the assets remaining in the qualified and bypass trusts
to anyone other than a creditor of the surviving spouse. If anything
remained in the trusts after the surviving spouse's appointment, the
proceeds would be distributed as provided in "Schedule G," which set out
allowances of 45 percent to Joan's children, 45 percent to Robert's children
and five percent each to Joan's sister and Robert's sister.

¶9           Joan and Robert signed the 2012 trust amendment in the
presence of two witnesses, and Sinchak notarized the document.

¶10            By the time Joan died in late February 2012, the relationship
between Joan's and Robert's family members had deteriorated significantly,
and it continued to deteriorate thereafter. In May 2012, exercising his
power of appointment under the 2012 amendment, Robert directed that
upon his death, assets in the bypass trust would be combined with the
assets in the survivor's trust, and that the combined assets would be
distributed five percent to his sister, and the remaining 95 percent be
divided one half for his two children and the other half for Joan's two
surviving children, in equal shares. But less than a year later, Robert
executed another amended and restated trust under which Joan's two
children would receive nothing. Under the February 2012 amendment,
Robert exercised his power of appointment to direct that, at his death, the
assets in the bypass trust would be divided five percent to his sister and the
remaining 95 percent divided between his two children, in equal shares.
Driving home the purpose of the February 2012 amendment to exclude
Joan's family, the document stated, "I intentionally have not provided for"
Joan's children, nor for her sister.

¶11            In August 2013, Don Hogan, his brother Michael Hogan, and
Joan's sister, Lois McLeod, filed a petition to reform the 2012 amendment
pursuant to Arizona Revised Statutes ("A.R.S.") section 14-10415 (2016).2
The complaint named as defendants Robert and his two children, Susan
O'Hara and Teri Dunne. In due course, the superior court granted
summary judgment to the O'Haras. We have jurisdiction over the Hogans'




2     Absent material revisions after the relevant date, we cite a statute's
current version.




                                      5
                      HOGAN et al. v. O'HARA et al.
                         Decision of the Court

timely appeal pursuant to A.R.S. §§ 12-120.21(A)(1) (2016) and -2101(A)(1)
(2016).3

                               DISCUSSION

¶12           The Hogans argue the superior court erred in granting
summary judgment in the face of a genuine disputed issue of material fact
about whether Joan understood and intended that, with her own death
imminent, the 2012 amendment would grant Robert the power to divert the
bypass trust from her sister and her sons to his own family members.

¶13            We review a grant of summary judgment de novo. Wells Fargo
Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust
Fund, 201 Ariz. 474, 482, ¶ 13 (2002). Summary judgment is proper if "the
moving party shows that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law." Ariz. R.
Civ. P. 56(a). In reviewing a grant of summary judgment, we view the
evidence and draw all reasonable inferences "in the light most favorable to
the party opposing the motion," and we construe those inferences in favor
of that party. Wells Fargo, 201 Ariz. at 482, ¶ 13. The court should grant a
motion for summary judgment if "the facts produced in support of the claim
or defense have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense." Orme Sch. v. Reeves,
166 Ariz. 301, 309 (1990).

¶14           Pursuant to A.R.S. § 14-10415:

       The court may reform the terms of a trust, even if
       unambiguous, to conform the terms to the settlor's intention
       if it is proved by clear and convincing evidence that both the
       settlor's intent and the terms of the trust were affected by a
       mistake of fact or law, whether in expression or inducement.4


3      The O'Haras filed a notice of appeal from the superior court's partial
denial of their motion for Rule 11 sanctions and for attorney's fees pursuant
to A.R.S. §§ 12-349 (2016), 14-1105 (2016), -11004 (2016). Because the notice
was not timely filed, see ARCAP 9, we lack jurisdiction to address that
appeal, see Edwards v. Young, 107 Ariz. 283, 284 (1971).

4      "Settlor" is defined as "a person, including a testator, who creates or
contributes property to a trust." A.R.S. § 14-10103(16) (2016). "If more than



                                      6
                      HOGAN et al. v. O'HARA et al.
                         Decision of the Court

¶15            When, as here, the law requires clear and convincing
evidence, we inquire whether the evidence presented "is such that a jury
applying that evidentiary standard could reasonably find for either the
plaintiff or the defendant." Dombey v. Phoenix Newspapers, Inc., 150 Ariz.
476, 486 (1986) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). We therefore determine whether a reasonable person could
conclude there was clear and convincing evidence that "both the settlor's
intent and the terms of the trust were affected by a mistake of fact or law" -
the essential elements of a reformation claim. See A.R.S. § 14-10415.

¶16            The Hogans argue the 2012 amendment did not reflect Joan's
intent that the couple's assets be divided equally between their respective
sets of children. They cite the official commentary to the Uniform Trust
Code § 415, from which A.R.S. § 14-10415 is derived, which explains, "A
mistake of expression occurs when the terms of the trust misstate the
settlor's intention, fail to include a term that was intended to be included,
or include a term that was not intended to be included." See State v. Sanchez,
174 Ariz. 44, 47 (App. 1993) (commentary to a uniform code "is highly
persuasive unless erroneous or contrary to settled policy in this state").

¶17             In response to the O'Haras' motion for summary judgment,
the Hogans presented affidavits, deposition testimony and the opinion of
an expert witness in support of their contention that Joan did not intend by
signing the 2012 amendment to allow Robert to divert the bypass trust from
Joan's family. The Hogans argued that, to the contrary, Joan understood
and intended that the ultimate distribution of trust assets would be as set
out in Schedule G, with five percent going to Lois, five percent going to
Robert's sister, and the remainder divided equally between the two sets of
grown children. In addition to the record facts recounted above, Don
testified that even after Joan and Robert executed the 2012 amendment, Joan
told him that the trust would be divided equally between her children and
Robert's. See Ariz. R. Evid. 803(3) ("statement of the declarant's then-
existing state of mind" is not excluded by the rule against hearsay).

¶18           As noted, Robert testified he did not believe Joan read the
2012 trust, and there is no evidence in the record that Sinchak, the lawyer,
provided a copy to either of them before the signing meeting. Don's


one person creates or contributes property to a trust, each person is a settlor
of the portion of the trust property attributable to that person's contribution
except to the extent another person has the power to revoke or withdraw
that portion." Id. It is undisputed that both Joan and Robert are settlors of
their trust.


                                      7
                      HOGAN et al. v. O'HARA et al.
                         Decision of the Court

account of Sinchak's explanation of the document at that meeting is
undisputed. As Don recounted, Sinchak's "explanation" entirely failed to
inform Joan that the amendment she was about to sign would allow Robert
to deprive her children of any share in the couple's assets. Don testified
that Sinchak "absolutely did not discuss" any power of appointment during
the signing meeting. Nor did Sinchak explain to the group that the
surviving spouse would have the power to alter the trust. The O'Haras
offered testimony by Sinchak that she explained the 2012 amendment over
the phone to Joan's sister Lois, and that Lois explained it to Joan. But Lois
testified she did not recall having any discussion with Joan about the
amendment.

¶19            The Hogans also offered an opinion letter by an expert
probate lawyer.5 The expert explained that the 1996 amendment, which
provided for the distribution of the couple's assets to their respective
families, is typical of a trust created by a husband and wife with children
from prior marriages. According to the expert, the 2012 amendment to the
trust "radically departs from the Settlors' original objectives quantified" in
the 1996 amendment: "No longer is there any protection for the deceased
spouse's descendants/beneficiaries." The power of appointment that the
2012 amendment grants to the surviving spouse is "the broadest possible,"
and allowed Robert to appoint Joan's property to "almost anyone – his
children, new wife, girlfriend, etc." The expert went on to point out that the
broad power of appointment is inconsistent with a provision that follows
directly thereafter in the 2012 document, by which Joan and Robert
reference their "testamentary wishes" that their assets be distributed as
provided in Attachment G (i.e. to their respective sisters and children).
Given that the 2012 amendment does not reflect the protections normally
expected in such a blended-family situation, and the absence of notes or
correspondence from Sinchak confirming that she discussed the
implications of the manner in which the 2012 amendment was drafted, the
expert concluded that the amendment did not reflect Joan's intent.

¶20            Although the dissent questions the expert witness's insight
into Joan's intent, it is undisputed that, as the expert pointed out, the 2012
amendment drastically departed from the existing trust document, which
would not have allowed Robert to deprive Joan's grown children of a share

5      Although the dissent questions the admissibility (on hearsay
grounds) of the expert opinion on summary judgment, the O'Haras did not
object to the opinion in the superior court. In any event, any hearsay
concern could have been remedied by an affidavit by the expert affirming
his opinion letter.


                                      8
                      HOGAN et al. v. O'HARA et al.
                         Decision of the Court

of the trust. Given the evidence that Joan intended her children to share in
the trust, and the absence of evidence that anyone explained to her that the
2012 amendment would allow Robert to cut out her children from the trust,
there is sufficient evidence to create a genuine issue of material fact, even
under a clear-and-convincing standard. The dissent argues that the 1996
version of the trust contained an appointment power, but under that power,
the surviving spouse was permitted upon his or her death to appoint the
bypass trust assets only to the descendants of the first-deceased spouse.
That is a far cry from the 2012 amendment, which, as seen, allowed the
survivor to appoint the assets entirely away from the descendants of the
first-deceased spouse.

¶21           The O'Haras argue that Joan willingly signed the 2012
amendment and note that the Hogans do not challenge her competence to
have done so. But the amendment is a complex 50-page document with
scores of interrelated provisions written in lawyer's language, not plain
English. The question is not whether Joan was mentally competent when
she signed it; the question is whether she knew and understood what she
was signing. There is no evidence in the record that the document could
have been understood by an average person without explanation, and the
explanation in the record by the couple's lawyer omitted any mention of the
provision that Robert ultimately relied on to deprive Joan's family of a share
of the couple's assets. Moreover, at the time of the amendment, Joan and
Robert both knew that Joan would soon die, meaning that to the extent that
the 2012 amendment gave the "surviving spouse" any extraordinary
powers, those powers would go to Robert, not Joan. Under the
circumstances, and the evidence that she understood and intended that the
trust would be divided equally between her family and Robert's, the
evidence establishes a genuine issue of material fact about whether the 2012
amendment correctly reflected Joan's intent.

                                CONCLUSION

¶22          For the foregoing reasons, we reverse the superior court's
entry of summary judgment and remand for further proceedings. As the
prevailing parties on appeal, the Hogans are entitled to their costs on appeal
upon compliance with Arizona Rule of Civil Appellate Procedure 21.



J O N E S, Judge, dissenting:

¶23        To be successful in their claim for reformation of the 2012
amendment, the Hogans must "prove[] by clear and convincing evidence


                                      9
                       HOGAN et al. v. O'HARA et al.
                          Jones, J., Dissenting

that both the settlor's intent and the terms of the trust were affected by a
mistake of fact or law, whether in expression or inducement." A.R.S. § 14-
10415. To resolve this appeal, we must determine whether, based upon the
evidence presented, a reasonable person could find by clear and convincing
evidence that the terms of the trust did not reflect Joan's intent - specifically,
that Joan did not intend for Robert to possess the power to appoint the
assets of the bypass trust in a manner that would alter the distribution set
forth in Schedule G of the instrument. See supra ¶ 10 (explaining how
Robert exercised the power of appointment over the assets of the bypass
trust to alter the distribution). In my view, the majority is too generous in
its conclusions that the evidence presented by the Hogans is either
competent or probative of Joan's intent, and that such evidence is sufficient
to defeat a motion for summary judgment in light of the heightened
standard of proof required by A.R.S. § 14-10415. See Orme Sch., 166 Ariz. at
309 (holding the trial court should grant a motion for summary judgment if
"the facts produced in support of the claim or defense have so little
probative value, given the quantum of evidence required, that reasonable
people could not agree with the conclusion advanced by the proponent of
the claim or defense").

¶24            First, the Hogans rely upon the deposition testimony of
Donald Hogan and Robert O'Hara. Donald, Joan's son and a beneficiary
under Schedule G of the 2012 amendment, testified Joan told him she
wanted her children and sister to have a share of her assets upon her death.
See supra ¶ 5. But, this testimony is not probative of whether Joan intended
the distribution set forth in Schedule G to be subject to the surviving
spouse's power of appointment - the material fact at issue here. In fact,
Donald's testimony relevant to that material fact was that he never spoke to
Joan about whether the surviving spouse would be able to change the terms
of the trust.

¶25            Donald also testified Joan told him she did not understand
why Robert wanted to amend the trust in 2012. See supra ¶ 5. Along these
same lines, Donald testified Sinchak, the attorney who prepared the
original trust and subsequent amendments, did not adequately explain the
2012 amendment, and Robert testified he did not believe Joan read the 2012
amendment prior to signing it.6 See supra ¶¶ 6-7. Even assuming these

6     The majority relies, at least in part, on "the lack of evidence in the
record" that Sinchak provided a copy of the 2012 amendment to Robert and
Joan before they executed it. See supra ¶ 18. But, the lack of evidence
regarding Sinchak's delivery of the actual document to Joan is not raised by



                                       10
                       HOGAN et al. v. O'HARA et al.
                          Jones, J., Dissenting

circumstances to be true, Joan's level of understanding of Robert's desire to
effect the 2012 amendment and the purported inadequacy of Sinchak's
explanations are not relevant to whether Joan intended it to contain certain
terms. Moreover, contrary to the majority's assertion otherwise, see supra ¶
18, Donald's self-serving testimony, as well as his actual presence at the
meeting where the 2012 amendment was executed, were squarely disputed
by Sinchak; she testified Donald was not present at the meeting and that,
not only did both parties want to have all of the assets placed under the
surviving spouse's control, but the power of appointment provision was a
result of "many years of planning" and "many discussions . . . before this
final meeting."

¶26             The only other relevant evidence proffered by the Hogans is
an opinion letter from a probate attorney that had never met, spoken to, or
corresponded with Joan. The letter, prepared long after Joan's death,
contained the attorney's conclusion that the broad power of appointment
was not "typical" for blended families, was inconsistent with Schedule G
and prior iterations of the trust, and, therefore, did not accurately reflect
Joan's intent. See supra ¶ 19. This Court should not consider the letter in
determining the motion for summary judgment; the letter is not sworn or
otherwise supported by sworn testimony and is therefore not proper for
consideration in summary judgment proceedings. See Ariz. R. Civ. P.
56(e)(4) ("When a motion for summary judgment is made and supported as
provided in this Rule, an opposing party may not rely merely on allegations
or denials of its own pleading; rather its response must, by affidavits or as
otherwise provided in this Rule, set forth specific facts showing a genuine issue
for trial.") (emphasis added).

¶27             Even if we consider the opinion letter, it is still not competent
evidence of Joan's intent. Competent evidence is that which provides "real-
life facts and circumstances of the actual case." Higgins v. Higgins, 194 Ariz.
266, 271, ¶¶ 19-21, 23 (App. 1999) (concluding the personal belief that a
mother's adulterous cohabitation has a detrimental effect on her children is
not competent evidence of harm) (citation omitted). Competent evidence
cannot be merely speculative and conclusory. See Brown Wholesale Elec. Co.
v. Safeco Ins. Co. of Am., 135 Ariz. 154, 158 (App. 1982). The probate attorney
here had no personal knowledge of Joan, her intent, the discussions she had
with Robert or her attorney, or any of the "real-life facts and circumstances
of the actual case." What a disassociated attorney thinks a typical person

the Hogans in opposing the motion for summary judgment, and it is not
relevant to our inquiry of whether Joan intended the 2012 amendment give
the surviving spouse a broad power of appointment over the bypass trust.


                                       11
                      HOGAN et al. v. O'HARA et al.
                         Jones, J., Dissenting

might desire or include within testamentary documents does not elucidate
the specific issue we must resolve: whether Joan intended something other
than what was written in the 2012 amendment.

¶28            Additionally, the attorney's opinion relies exclusively upon
problematic circular reasoning and speculation. What should or should not
have been included in the 2012 amendment is entirely dependent upon
Joan's intent. But, the attorney's opinion that Joan did not intend the power
of appointment provision contained therein presupposes her lack of intent.
More specifically, the attorney concludes the 2012 amendment's broad
power of appointment is inconsistent with Joan and Robert's "testamentary
wishes" that their assets be distributed according to Schedule G. However,
the distribution scheme set forth in the trust is, and its prior iterations
always have been, effective only "to the extent the [surviving spouse] does
not effectively exercise [the] power of appointment."7 The attorney, in the
absence of evidence regarding the "real-life facts and circumstances of the
actual case," relied solely upon Schedule G in concluding that the 2012
amendment "'radically departs from the Settlors' original objectives
quantified' in the 1996 amendment." See supra ¶ 19. The only way to accept
this conclusion would be to ignore the fact that the provisions distributing
the assets in the 1996 amendment and the original trust were subject to
those granting the surviving spouse a power of appointment over those
assets.

¶29        After considering the competence and probative value of the
evidence, we are left with Donald's self-serving and otherwise

7      Contrary to Donald's self-serving testimony and the probate
attorney's letter regarding Joan's intent, the previous trust instruments,
which no one argued were not expressions of Joan's intent, both provided
that distribution of the trust's assets were subject to the surviving spouse's
power of appointment, albeit with varying degrees of limitation. The 1986
trust provided: "Upon the death of the surviving [spouse], the Trustee shall
distribute the balance of the Bypass Trust to the Trustor's descendants or
their spouses as appointed under the surviving Trustor's will. . . . Any
assets not appointed shall be held and administered under the provisions
of Article V." Similarly, the 1996 amendment provided: "[T]he Trustee shall
from time to time distribute such amounts of the principal of the Bypass
Trust to any one or more of the deceased Trustor's descendants, in such
amounts and on such terms as the surviving Trustor appoints by a written
instrument specifically referring to this power of appointment."




                                     12
                       HOGAN et al. v. O'HARA et al.
                          Jones, J., Dissenting

unsubstantiated testimony that Joan did not intend to grant Robert a broad
power of appointment over the bypass trust.8 Under a lower evidentiary
standard, this testimony might be sufficient to create a genuine issue of
material fact. However, because of the risk of fraudulent testimony in
probate cases, the Hogans are tasked with proving their case by clear and
convincing evidence. See Restatement (Third) of Property: Donative
Transfers § 12.1 cmt. d (noting the requirement of clear and convincing
proof protects against fraudulent testimony); cf. Occidental Life Ins. Co. of Cal.
v. Marsh, 5 Ariz. App. 74, 76 (1967) (noting the "clear and convincing"
standard provides "substantial protection" in a situation where there are no
witnesses). Although the majority recognizes "the quantum of evidence
required" must be considered when determining whether summary
judgment is appropriate, supra ¶ 13, its analysis of the heightened standard
of proof required by A.R.S. § 14-10415 is unconvincing. Even considering
the facts in the light most favorable to the non-moving party, I cannot
conclude that any reasonable person could agree with the Hogan's position
based upon the dearth of evidence supporting their position. See Orme Sch.,
166 Ariz. at 309. Accordingly, I would affirm summary judgment in favor
of the O'Haras.




                                    :AA




8      Although the majority concedes the Hogans do not challenge Joan's
competence to execute the 2012 amendment, it highlights evidence
regarding Joan's poor health and concludes Joan did not read or understand
the 2012 amendment. Again, however, our inquiry is limited to whether a
reasonable person could find by clear and convincing evidence that Joan
did not intend to grant Robert a broad power of appointment over the
bypass trust.



                                          13
