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                  by Michael J. Brown](https://www.courtlistener.com/opinion/10811680/donovan-v-donovan/#o1)

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March 20, 2026 Get Citation Alerts Download PDF Add Note

DONOVAN v. DONOVAN

Court of Appeals of Arizona

• Citations: None known
• Docket Number: 1 CA-CV 25-0397 PB

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (31.6K)

• PDF

Combined Opinion

                        by [Michael J. Brown](https://www.courtlistener.com/person/6183/michael-j-brown/)

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

Michael Donovan, Deceased.

No. 1 CA-CV 25-0397 PB
FILED 03-20-2026

Appeal from the Superior Court in Maricopa County
No. PB2024-002501
The Honorable Elizabeth T. Bingert, Judge Pro Tempore

AFFIRMED

COUNSEL

Rose Law Group, Scottsdale
By Shelton L. Freeman, Austin D. Moylan
Counsel for Appellant Lisa Donovan

Jones, Skelton & Hochuli PLC, Phoenix
By Eileen Dennis Gilbride
Co-Counsel for Appellants Joseph Donovan and Madeline Donovan

Becker & House PLLC, Scottsdale
By Mark E. House, Amanda L. Barney
Co-Counsel for Appellants Joseph Donovan and Madeline Donovan

Andersen PLLC, Scottsdale
By Mark W. Hawkins, Kira E. Darragh
Counsel for Appellee Holly Herberger DelCastillo
DONOVAN v. DONOVAN, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Veronika Fabian and Vice Chief Judge David D. Weinzweig
joined.

B R O W N, Judge:

¶1 Lisa Donovan, Joseph Donovan, and Madeline Donovan
(collectively, “Appellants”) challenge the superior court’s (1) judgment
dismissing a petition to reform and probate a will, and (2) denial of a
motion for new trial or to alter or amend the judgment. For the following
reasons, we affirm.

BACKGROUND

¶2 The Judd Herberger Trust (“the Herberger Trust”) created a
trust (“Residuary Trust”) for Judd Herberger’s stepson, Michael Donovan,
the decedent in this probate matter. The Herberger Trust required
Michael to exercise his power of appointment over the Residuary Trust by
specifically referencing such power and the relevant section of the
Herberger Trust in his will. If he failed to do so, then upon his death the
Herberger Trust required its trustee to distribute the Residuary Trust to
Judd’s children, including Holly Herberger DelCastillo.

¶3 Michael, who had no spouse or children, signed and
executed his will at his attorney’s office in August 2023. The will gave all
of Michael’s probate estate, excluding any property over which he had a
power of appointment, to the trustee of the revocable living trust he
created and directed the trustee to administer the property according to
that trust. The will did not include a provision exercising the power of
appointment under the Herberger Trust.

¶4 After Michael’s death in February 2024, his sister Lisa
petitioned the superior court for the formal probate of an unsigned version
of Michael’s will, which included this provision:

In the Judd Herberger Trust, dated April 12, 1999, as
amended, or a sub-trust thereof, I was granted a
testamentary power of appointment over assets to which I
am a designated beneficiary over time. If I predecease the

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DONOVAN v. DONOVAN, et al.
Decision of the Court

distribution of these assets, I now exercise that power of
appointment and appoint the property subject to the power
to be distributed[] [t]o my niece Madeline . . . [and to] my
nephew Joseph [in equal shares].

Alternatively, Lisa sought to reform the signed will to incorporate that
provision and to probate the reformed will.

¶5 Lisa’s petition included a declaration by Michael’s attorney
explaining that Michael had signed the wrong version of the will. The
declaration explained that despite Michael’s expressed intention that the
assets go to his niece and nephew (Lisa’s children), the attorney’s initial
draft of Michael’s will did not include the provision quoted above. The
attorney revised the will, but when Michael came to sign it, the wrong
version had been printed. Michael signed that version, contradicting his
intention.

¶6 Lisa voluntarily withdrew her request for formal probate of
the unsigned will, asserting the signed will should be reformed to reflect
Michael’s intent as shown by the unsigned will. DelCastillo, who would
receive a share of Michael’s interest in the Residuary Trust under the
signed will, moved to dismiss Lisa’s request to reform the signed will.
The superior court granted the motion, finding the unsigned will is
invalid and cannot “serve as a basis for reforming the executed will.” The
court refused to consider the unsigned will and the attorney’s declaration
as extrinsic evidence to contradict the signed will’s plain language, which
the court found “expressly excludes the power of appointment.”

¶7 The court dismissed Lisa’s petition with prejudice, finding
the signed will unambiguously did not contain a provision that exercised
the power of appointment created by the Herberger Trust. The court also
denied the parties’ requests for attorneys’ fees, and after the court denied
Appellants’ post-judgment motions, this timely appeal followed. We have
jurisdiction under A.R.S. § 12-2101(A)(9).

DISCUSSION

¶8 We review de novo the dismissal of Lisa’s petition. See
Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). “The Arizona Rules
of Civil Procedure apply to probate proceedings” unless inconsistent with
or otherwise provided by the Arizona Rules of Probate Procedure. Ariz.
R. Prob. P. 4(a)(1). Dismissal is appropriate if the petitioner is not
“entitled to relief under any interpretation of the facts susceptible of
proof.” Coleman, 230 Ariz. at 356, ¶ 8.

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DONOVAN v. DONOVAN, et al.
Decision of the Court

¶9 Appellants argue the superior court should have considered
extrinsic evidence of Michael’s unsigned will and his attorney’s
declaration stating that Michael signed and executed the wrong version of
the will because of a drafting error. They contend the court needed to
reform the signed will to include the provision in the unsigned will
exercising the power of appointment. We reject Appellants’ contention
because it would require us to deviate from well-established legal
principles governing the interpretation of wills.

¶10 One of the purposes of Arizona’s Trusts, Estates, and
Protective Proceedings statutes, A.R.S. §§ 14-1101 to -13118, is “[t]o
discover and make effective the intent of a decedent in distribution of his
property.” A.R.S. § 14-1102(B)(2). “[T]he intent of the [testator] is the
overriding consideration, but the intent expressed in the will is
controlling.” Brewer v. Peterson, 9 Ariz. App. 455, 460 (1969). “[T]o be
effective[,] the donee’s exercise of the power of appointment must comply
perfectly with any formal requirements imposed by the donative
instrument.” Matter of Strobel, 149 Ariz. 213, 217 (1986). Here, it is
undisputed that Michael’s signed will did not exercise the power of
appointment created by the Herberger Trust.

¶11 Appellants acknowledge that Arizona follows a
no-reformation rule for wills, see Matter of Blacksill’s Estate, 124 Ariz. 130,
132 (App. 1979), and that courts consider extrinsic evidence only when an
ambiguity exists, see In re Estate of Pouser, 193 Ariz. 574, 578-79, ¶ 10 (1999)
(“A will is ambiguous when the written language is fairly susceptible of
two or more constructions.” (citation modified)); Hill v. Hill, 37 Ariz. 406,
410 (1931) (“[Extrinsic] evidence is not admissible to alter or contradict the
plain terms of the will, but, if the terms be ambiguous, [extrinsic] evidence
may be [used] to determine the meaning.”). Appellants concede the
signed will is unambiguous. They also recognize that “in cases of clear
draftsman’s error, courts refuse to reform the will.” Blacksill’s Estate, 124
Ariz. at 132. Even in cases of ambiguity, extrinsic evidence is only
admissible “to show what the testator meant by what he said, not to show
what he intended to say.” Id.

¶12 To effect Michael’s “true” intent here, Appellants urge us to
follow the “modern rule” as reflected in the Restatement (Third) of
Property: Wills and Other Donative Transfers (“Restatement”) and the
Uniform Probate Code, which allow reformation of a will in cases of
mistake if proved by clear and convincing evidence. See Restatement
§ 12.1 (2003) (“A donative document, though unambiguous, may be
reformed to conform the text to the donor’s intention if it is established . . .

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DONOVAN v. DONOVAN, et al.
Decision of the Court

that a mistake of fact or law, whether in expression or inducement,
affected specific terms of the document.”); Unif. Prob. Code § 2-805 (“The
court may reform the terms of a governing instrument, even if
unambiguous, to conform the terms to the transferor’s intention if it is
proved . . . what the transferor’s intention was and that the terms . . . were
affected by a mistake of fact or law, whether in expression or
inducement.”).

¶13 As urged by Appellants, the “modern rule” supports
effectuating a testator’s intent by considering extrinsic evidence when a
will is unambiguous but the extrinsic evidence suggests the will’s terms
contradict the testator’s intent. The rationale has been explained as
follows:

When a donative document is unambiguous, evidence
suggesting that the terms of the document vary from
intention is inherently suspect but possibly correct. The law
deals with situations of inherently suspicious but possibly
correct evidence in either of two ways. One is to exclude the
evidence altogether, in effect denying a remedy in cases in
which the evidence is genuine and persuasive. The other is
to consider the evidence, but guard against giving effect to
fraudulent or mistaken evidence by imposing an above-
normal standard of proof. In choosing between exclusion
and high-safeguard allowance of extrinsic evidence, this
Restatement adopts the latter. Only high-safeguard
allowance of extrinsic evidence achieves the primary
objective of giving effect to the donor’s intention. To this
end, the full range of direct and circumstantial evidence
relevant to the donor’s intention described in § 10.2 may be
considered in a reformation action.

Restatement § 12.1 cmt. b.

¶14 While the Restatement permits considering extrinsic
evidence under a heightened burden of proof, this “modern rule” urged
by Appellants conflicts with Arizona law, which precludes consideration
of extrinsic evidence when, as conceded here, the plain language of a will
is unambiguous, see Pouser, 193 Ariz. at 578–79, ¶ 10; Hill, 37 Ariz. at 410;
see also Cornell v. Desert Fin. Credit Union, 254 Ariz. 477, 483, ¶ 23 (2023)
(“In the absence of binding precedent, we follow the Restatement if it sets
forth sound legal policy.” (emphasis added)). Even if we believed
Arizona should follow the Restatement on this topic, as an intermediate

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DONOVAN v. DONOVAN, et al.
Decision of the Court

appellate court, we are bound by the opinions of our supreme court. See
Sell v. Gama, 231 Ariz. 323, 330, ¶ 31 (2013) (emphasizing that lower courts
are bound by supreme court precedent). And we cannot depart from
precedent “unless the reasons underlying it no longer exist or the
[previous caselaw] was clearly erroneous or manifestly wrong.” Laurence
v. Salt River Project Agric. Improvement & Power Dist., 255 Ariz. 95, 100, ¶ 17
(2023) (citation modified). “‘[A]ny departure from the doctrine of stare
decisis demands special justification.’” State v. Hickman, 205 Ariz. 192, 200,
¶ 37 (2003) (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). Those
circumstances are not present here.

¶15 Moreover, adopting the Restatement in this area of law
would undermine the legislature’s role in regulating wills. See Matter of
Estate of Muder, 159 Ariz. 173, 174 (1988) (“The right to make a will did not
exist at common law. It is a statutory right.”). “Because the legislature
has the power to withhold or to grant the right to make a will, its exercise
[of that power] may be made subject to such regulations and requirements
as the legislature pleases.” Id.; see also In re Estate of Jung, 210 Ariz. 202,
207, ¶ 27 (App. 2005) (recognizing the legislature’s adoption of the
Uniform Probate Code’s view that witnesses may sign a will “within a
reasonable time”).

¶16 The legislature requires a will to be signed. A.R.S.
§§ 14-2502 (paper wills), -2503 (holographic wills), -2518 (electronic wills).
Following the “modern rule” to permit extrinsic evidence to reform a
signed will based on unsigned testamentary language would violate
Arizona law requiring signatory intent. See, e.g., In re Estate of Bixby, ___
Ariz. __, __, ¶ 10, 573 P.3d 113, 117 (App. 2025) (noting the distinction
between testimonial and signatory intent).

¶17 We are not persuaded by Appellants’ argument that
following the “modern rule” to reform wills would align with Arizona’s
enactment of A.R.S. § 14-10415, which permits reformation of a trust, even
in cases of unambiguity, to conform to a settlor’s intent if proved by clear
and convincing evidence that a mistake affected the intent and the trust’s
terms. Unlike wills, trusts do not necessarily need to be signed. A.R.S.
§ 14-10407. Thus, it is the legislature’s role to decide whether to codify the
“modern rule” as to wills as set forth in section 12.1 of the Restatement
and section 2-805 of the Uniform Probate Code. See Muder, 159 Ariz. at
174; Jung, 210 Ariz. at 207, ¶ 27.

¶18 Assuming the well-pled facts in the petition are true,
dismissal was appropriate because Appellants failed to state a claim under

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DONOVAN v. DONOVAN, et al.
Decision of the Court

Arizona law. See Coleman, 230 Ariz. at 356, ¶ 8. We do not address
whether the superior court erred by finding that certain alleged facts were
inadmissible because they arose from a violation of the attorney-client
privilege.

¶19 DelCastillo requests attorney’s fees under several statutes
and ARCAP 25, asserting Lisa’s appeal is groundless. We deny
DelCastillo’s request but award her taxable costs upon compliance with
ARCAP 21.

CONCLUSION

¶20 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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