NIKOLS v. NIKOLS

2026 UT App 134
THE UTAH C OURT OF APPEALS
NICK J. NIKOLS , DIANA J. NICHOLAS , AND M ATTHEW J. NIKOLS ,
Appellees,
v.
A NGELA J. NIKOLS ,
Appellant.
Opinion
No. 20250642-CA
Filed September 3, 2026
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 240901737
Justin W. Starr, Christopher A. Bates, Rod N.
Andreason, Jacob A. Green, and Emily Haws Wright,
Attorneys for Appellant
P. Matthew Muir and Deborah R. Chandler,
Attorneys for Appellees
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES R YAN D. TENNEY and JOHN D. LUTHY concurred.
ORME, Judge:
¶1 	This appeal arises from a dispute over the estate of the late
John N. Nikols. Following the successive deaths of both John and
his son, Michael J. Nikols, Michael’s widow, Angela J. Nikols,
asserted claims to John’s trust.1 Angela argued that she was the
successor to Michael’s interest in the trust, his management rights
under a separate agreement he and John signed to develop certain
properties, and his irrevocable right of first refusal to purchase
1. Because most of the individuals involved with this case share
the same last name, we refer to them by their first names, with no
disrespect intended by the apparent informality.

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20250642-CA 	2 	2026 UT App 134
trust 	property. 	The 	district 	court 	granted 	partial 	summary
judgment in favor of John’s other children, Nick J. Nikols, Diana
J. Nicholas, and Matthew J. Nikols, on all of Angela’s claims,
ruling that Michael’s interest in the trust and his contractual rights
terminated upon his death. We affirm.
BACKGROUND2
John’s Business Ventures
¶2 	John was a successful restaurateur and businessman who
owned the historic Coachman’s Dinner and Pancake House
(Coachman’s) located on State Street in Salt Lake City and various
other 	commercial 	and 	residential 	properties. 	John 	had 	four
children: Michael, Matthew, Nick, and Diana. John’s wife passed
away in 2011. Michael married Angela in 2016.
¶3 	For decades, Michael helped John run Coachman’s and
assisted with some of John’s other property ventures. After
Coachman’s closed in 2021, John and Michael hoped to redevelop
the 	Coachman’s 	property 	and 	another 	nearby 	State 	Street
property into “a residential condominium and/or commercial
complex.”
The Power of Attorney and the Trust
¶4 	In August 2018, John executed a durable power of attorney,
appointing Michael as his attorney-in-fact and granting Michael
broad authority to manage John’s affairs, including the power to
buy, sell, and lease real estate; execute contracts; access John’s
bank accounts; and consent to medical treatment. Nearly a year
2. “When reviewing a district court’s order granting summary
judgment, we recite the facts in the light most favorable to the
non-moving party.” Hall v. Springville City, 2025 UT App 115, n.1,
576 P.3d 1095 (quotation simplified), cert. denied, 581 P.3d 552
(Utah 2025).

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20250642-CA 	3 	2026 UT App 134
later, in July 2019, John established the John N. Nikols Living
Trust (Trust) and executed a pour-over will directing that all his
assets pass to the Trust upon his death. John was the Trust’s sole
beneficiary during his lifetime, and over time, John transferred
“all or substantially all of his significant real estate holdings,”
including the Coachman’s property, into the Trust. Because
Michael had been “managing all of [John’s] real and personal
property for many years” and was “the person most familiar with
[his] affairs,” John appointed Michael as trustee. John also named
Michael 	as 	the 	personal 	representative 	of 	his 	estate 	in 	the
pour-over will.
¶5 	Under the terms of the Trust, upon John’s death, all four of
his children would become primary beneficiaries in equal parts.
The Trust also “request[ed] that the Trustee keep the real estate in
the Trust Estate together as much as is reasonable in light of the
circumstances 	as 	they 	evolve, 	and 	that distributions 	to 	the
Primary 	Beneficiaries 	not 	be 	completed 	until 	Trustee 	has
developed [the Coachman’s property].” Relatedly, the Trust
directed the trustee
to retain in the Trust Estate the real property owned
by the Trust Estate, and to allocate and distribute the
rental income not reasonably needed to maintain
and develop said real property to its highest and
best use in the reasonable judgment of the Successor
Trustee to (or to retain in Trust for the benefit of, as
applicable) 	the 	aforementioned 	Primary
Beneficiaries 	(or, 	if 	deceased, 	their 	respective
surviving issue) as herein provided.
¶6 	The Trust further included a provision (the Per Stirpes
Provision) that directed the allocation of Trust assets “upon the
death of a Primary Beneficiary of the Settlor prior to complete
distribution of his or her share.” As relevant here, it instructed
that “[i]n the event a deceased Primary Beneficiary should leave
no issue, then said Primary Beneficiary’s share shall be distributed
per stirpes, on the principle of representation, to the remaining

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20250642-CA 	4 	2026 UT App 134
Primary 	Beneficiaries 	or 	their 	then 	living 	issue 	upon 	their
reaching the [age of 25].”
¶7 	The 	Trust 	also 	included 	a 	provision 	(the 	Deferral
Provision) that stated,
If the Trust directs distribution of the Trust Estate or
division into separate trusts, then the Trustee may,
in the Trustee’s reasonable discretion, defer that
distribution or division for a period reasonably
necessary to wind up properly the affairs of the
Trust. When the Trustee so defers, the Trustee shall
make the distribution or division as if it had taken
place at the time prescribed in the absence of this
paragraph, and all beneficiary rights in those Trust
assets shall accrue and vest as of the prescribed time.
The Development Agreement
¶8 	On June 5, 2020, John, Michael individually, and Michael
acting as the Trust’s trustee signed a “Comprehensive Business
Development and Investment Agreement” (the Development
Agreement) with a retroactive effective date of January 1, 2019—
some six months prior to the Trust’s creation. The Development
Agreement had an effective “term of not less than” 25 years unless
terminated earlier by the written agreement of all parties or by
Michael’s “sole and complete” decision that termination was in
the parties’ best interest. Upon termination, all net profits and
assets were to be distributed back to the Trust or “the requisite
beneficial party.”
¶9 	The Development Agreement expressed John’s desire to
fulfill his past “promises” and “commitments” to Michael; to
reward 	Michael 	for 	his 	“endeavors, 	work, 	business 	advice,
loyalty, love and affection (‘Business Judgment’)”; and “to further
encourage and induce [Michael] to continue [his] efforts and
assume the burden of acting as Trustee and” completing the
redevelopment of the Coachman’s property and several other

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20250642-CA 	5 	2026 UT App 134
named projects.3 To that end, the Development Agreement vested
Michael with “sole and absolute discretion” to direct the projects
and 	“irrevocably 	committed 	and 	Conveyed” 	various 	Trust
properties to Michael for purposes of completing John and
Michael’s 	shared 	objectives. 	Somewhat 	confusingly, 	the
Development Agreement also “acknowledge[d]” that “during the
term of this Agreement,” Michael had “an irrevocable right to
commit 	and 	Convey” 	the 	properties 	“for 	the 	benefit 	and
completion of” the development of the Coachman’s property and
that any property—whether “real, personal, choate, inchoate,
tangible or intangible—transferred to Michael pursuant to the
Development Agreement may be held by Michael in his “sole
name.” The Development Agreement also reaffirmed Michael’s
durable power of attorney to access John’s bank accounts and
manage his real property, broadly waived “any and all conflicts”
of interest, and required John to appoint Michael as the trustee
and personal representative of any future trusts or wills.
¶10 	As compensation for his efforts, Michael was entitled
under the Development Agreement to a “management fee” of
15% of yearly profits from any project and to a “success fee” of
10% of all profits from a project’s completion, sale, or transfer. The
Development Agreement also granted Michael an “Irrevocable
Right of First Refusal” (the IRFR) “to acquire certain Projects,
assets, proceeds, from [John], the [Trust], and/or Business Entities
formed under” the Development Agreement at 75% of the lesser
of the fair market value or a bona fide third-party offer to
purchase. The IRFR was “present and enforceable” and “freely
assignable.” It was a “separate benefit” from Michael’s regular
compensation that Michael had the “sole right” to exercise “at any
3. The Development Agreement similarly stated that John’s
“intent in creating the [Trust] was in part, to induce and enable
[Michael] to complete the plans, goals and projects” that John and
Michael “had envisioned, planned, and implemented and had
worked toward over the past 40 years or so, and ensure the
culmination of said Projects for the benefit of” John, Michael, and
the Trust.

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20250642-CA 	6 	2026 UT App 134
time . . . for the term of” the Development Agreement. The stated
purpose of the IRFR was “to induce [Michael] to use his best
efforts in the completion and development of the Projects” and to
serve as “additional consideration . . . to ensure that he is
adequately compensated, rewarded, reimbursed, paid, and able
to reap the fruits of all of [his] efforts and fully recover [his]
Contribution, that has substantially benefited” John and the Trust.
¶11 	Lastly, the Development Agreement included a provision
(the Binding Effect Provision), which stated,
The terms, conditions, covenants and agreements,
including but not limited to any implied or express
waiver of rights, is binding upon the parties, their
respective heirs, beneficiaries, assigns, successor[s],
successors in interest, representatives, executors,
personal 	representatives, 	estates, 	trusts, 	trustees
and 	the 	like. 	There are 	no 	express or 	implied
third-party beneficiaries under this Agreement. All
rights, profits and benefits hereunder shall accrue
solely to the parties.
The Deaths of John and Michael and the Ensuing Lawsuit
¶12 	John passed away on August 22, 2023. Michael passed
unexpectedly just a few months later, on December 2, 2023.
Because Michael did not have any children, Angela, as his widow,
was his sole heir and the personal representative of his estate.
Prior to his death, Michael had not made any distributions from
the Trust, nor had the Coachman’s property been redeveloped.
¶13 	Following 	Michael’s 	death, 	Matthew 	was 	appointed
personal representative of John’s estate, and he, Nick, and Diana
(collectively, the Siblings) became successor trustees of the Trust.
In that capacity, the Siblings moved swiftly to secure control of
the Trust’s assets.

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¶14 	In January 2024, the Siblings served Angela with an
eviction notice for the duplex where she resided, which was Trust
property, 	and 	demanded 	the 	keys 	to 	various 	other 	Trust
properties. And in May 2024, they changed the locks on a
townhome, also Trust property, where Angela had also been
living. In response, Angela, acting as personal representative of
Michael’s estate, recorded lis pendens on several Trust properties,
including the Coachman’s property. She also presented a copy of
the Development Agreement to the Siblings, who until that point
had been unaware of its existence.
¶15 	In February 2024, the Siblings initiated the current lawsuit
against 	Angela 	and 	Michael’s 	estate, 	seeking 	a 	declaratory
judgment that the Development Agreement was invalid and
alleging claims for undue influence, breach of contract, breach of
fiduciary duty, and conversion against Michael’s estate.4 Angela
counterclaimed, seeking, in relevant part, a declaratory judgment
that the Development Agreement was valid and enforceable and
that she succeeded to Michael’s rights under the Development
Agreement as his heir.
The Motions for Partial Summary Judgment
¶16 	The 	parties 	later 	filed 	a 	series 	of 	cross-motions 	for
summary judgment on the following issues: (1) whether Angela
or Michael’s estate were a beneficiary of the Trust, (2) whether the
Development Agreement was enforceable, and (3) whether the
IRFR survived Michael as an assignable property interest. We
summarize each issue in turn.
4. Because the claims against Michael’s estate remain pending in
the district court and are not a subject of this appeal, we do not
recount in detail the Siblings’ allegations supporting those causes
of action. Broadly speaking, they allege that Michael exploited his
power of attorney to misappropriate a significant amount of
John’s funds for his personal use and that he grossly mismanaged
the Trust’s assets.

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¶17 	Trust 	Beneficiaries. 	The 	Siblings 	first 	sought 	partial
summary 	judgment 	on 	their 	claim 	that neither 	Angela nor
Michael’s estate was a beneficiary of the Trust. The Siblings
argued that because Michael did not have living issue, his interest
in the Trust passed to the Siblings pursuant to the Per Stirpes
Provision. Angela, in turn, asserted that Michael—and now his
estate—was 	a 	Trust 	beneficiary 	pursuant 	to 	the 	Deferral
Provision, 	which, 	according 	to 	Angela, 	provided 	“that 	if
distribution of [Trust] assets is delayed because its assets were
sent 	to 	‘separate 	trusts,’ 	beneficiary 	rights 	vest 	‘as 	of 	the
prescribed time’—the time of John’s passing.” She asserted that
the Development Agreement created a “separate trust” to which
certain Trust properties were conveyed, that this delayed the
distribution 	of 	Trust 	assets 	upon 	John’s 	death, 	and 	that
beneficiary rights vested at the time of John’s passing and were
not redistributed to the Siblings pursuant to the Per Stirpes
Provision after Michael died. The Siblings responded that the
Deferral Provision did not apply because it required that the
Trust—and not any other agreement—direct the distribution of
assets to “separate trusts.” They also argued that, in any event, the
Development Agreement did not create any such “separate
trusts.”
¶18 	The district court granted partial summary judgment in the
Siblings’ favor, ruling that neither Michael’s estate nor Angela
was a beneficiary under the Trust. The court concluded that the
Deferral Provision’s reference to “the Trust” meant that the
distribution must be directed by “the Trust document itself and
not [be] the creation of a trust pursuant to a different set of
transactions or a different set of documents.” The court concluded
that, given that interpretation, the Deferral Provision was not
triggered and Michael’s interest in the Trust thus passed to the
Siblings pursuant to the Per Stirpes Provision.
¶19 	Termination of the Development Agreement. Next, the
Siblings sought partial summary judgment determining that the
Development Agreement was unenforceable because it was a
personal services contract and thus “terminated upon the deaths

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of John and Michael.” Specifically, they asserted that the contract
was of an “exceedingly personal nature” because, quoting the
Development Agreement, it concerned “Michael’s obligation to
perform in person and complete the ‘plans, goals and projects’
that he and his father had ‘envisioned, planned and implemented
and had worked toward over the past 40 years.’” The Siblings
further pointed to the Development Agreement’s stated purpose
of encouraging and inducing Michael to continue those efforts
and asserted that such obligations could not “be discharged by
anyone 	else—rather 	they 	are 	specific 	to 	Michael.” 	Angela
countered that the Development Agreement was not a personal
services contract because it was largely intended to compensate
Michael for prior work and because any work required under the
contract was not something only Michael could perform. Angela
also argued that the parties did not intend for the Development
Agreement to terminate upon their deaths, asserting that even if
it were a personal services contract, the Binding Effect Provision
explicitly made its terms binding upon their “heirs, beneficiaries,
assigns, successor[s], . . . and the like.”
¶20 	The district court again granted partial summary judgment
in the Siblings’ favor, ruling that the Development Agreement
was a personal services contract and therefore not assignable. The
court noted that the Development Agreement was “unusual,” to
“put[] 	it 	mildly.” 	The 	court 	began 	its 	analysis 	with 	the
presumption of assignability and acknowledged that certain
“features” 	of 	the 	Development 	Agreement 	supported 	that
conclusion. Specifically, the court noted that the contract’s subject
matter was real estate development (as opposed to a creative or
artistic endeavor), the contract had an extended term of at least 25
years although John was already 85 years old at the time of
signing, and the contract contained the Binding Effect Provision
(although the court noted that the same provision also stated that
“[a]ll rights, profits, and benefits hereunder shall accrue solely to
the parties”).
¶21 	Nevertheless, the court concluded that, taken as a whole,
the Development Agreement was “quite clearly rooted in the

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personal relationship between” John and Michael, pointing to the
following:
• 	The Development Agreement explicitly established that it
was premised on “loyalty, love and affection” and on
John’s 	multi-decade 	reliance 	on 	Michael’s 	“Business
Judgment.”
• 	The 	Development 	Agreement 	irrevocably 	committed
management of all of John’s commercial and residential
properties to Michael and gave him absolute, exclusive
control 	over 	John’s 	existing 	and 	future 	bank 	and
investment accounts.
• 	The 	Development 	Agreement 	required 	that 	John
appoint Michael 	as 	the 	trustee 	and 	executor 	of 	any
future or amended trusts and wills. On this point, the
court noted 	that 	if 	the 	contract 	were 	assignable,
Michael could have theoretically assigned the right to
administer 	John’s 	personal 	estate 	to 	an 	unknown
third-party.
Ultimately, 	the 	court 	reasoned 	that 	while 	it 	is
“perhaps understandable” 	that 	a 	father 	would, 	out 	of
personal “love, 	trust 	and 	affection,” 	give 	his 	son
“unfettered control” over “the fruits of his lifetime work and
effort” and the corresponding “enormous potential profits,”
possibly to the detriment of his other children, it is highly
implausible 	that 	he 	would 	do 	the 	same 	for 	a 	“potentially
unknown and unidentified assignee” of that son. Accordingly, the
court 	ruled 	that 	the Development 	Agreement 	“was for 	the
personal services of [Michael] to be provided during and after
[John’s] death.”
¶22 	The IRFR. Shortly after the district court ruled on the
enforceability of the Development Agreement, the Siblings sent
Angela a letter requesting that she release the lis pendens she had

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20250642-CA 	11 	2026 UT App 134
recorded on several of the Trust’s properties. Angela responded
that the court’s ruling did not invalidate the IRFR and that she
would be exercising her right under the IRFR to purchase certain
of the Trust’s properties, including the Coachman’s property. The
parties subsequently filed cross-motions for partial summary
judgment on whether the IRFR was enforceable.
¶23 	The Siblings contended, among other things, that the IRFR
was 	not 	enforceable 	because 	it 	terminated 	along 	with 	the
Development 	Agreement 	upon 	Michael’s 	death 	and 	was
therefore no longer enforceable. Angela responded that under the
express terms of the Development Agreement, the IRFR was
“present and enforceable,” was “freely assignable,” and could be
exercised “at any time . . . for the term of” the Development
Agreement (i.e., no less than 25 years). Angela also pointed out
that the IRFR was granted as compensation for the “substantial[]
benefit[]” Michael gave John. For these reasons, Angela asserted
that the IRFR provision could not be considered a “personal
service.”
¶24 	The 	district 	court 	again 	granted 	partial 	summary
judgment in 	the 	Siblings’ 	favor. 	The 	court 	rejected
Angela’s argument 	that 	the 	IRFR 	was 	a 	separate 	property
interest that survived Michael’s death. Pointing to the stated
purpose of the IRFR, which was “to induce [Michael] to use his
best efforts in the completion and development of the Projects,”
the court ruled that the IRFR was “part and parcel of the other
duties and obligations in the” Development Agreement. The court
further concluded that because Michael 	never attempted to
exercise 	the 	IRFR 	prior 	to 	the 	Development 	Agreement’s
termination, the IRFR also terminated at that same time. The court
thus ordered Angela to release the lis pendens on the Trust’s
properties.

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¶25 	The 	district 	court 	subsequently 	certified 	these 	partial
summary judgment orders as final pursuant to rule 54(b) of the
Utah Rules of Civil Procedure.5 This appeal followed.
ISSUES AND STANDARD OF REVIEW
¶26 	Angela 	challenges 	each 	of 	the 	district 	court’s 	partial
summary judgment rulings in the Siblings’ favor. Specifically, she
contends that the court erred in concluding that (1) neither Angela
nor Michael’s estate is a Trust beneficiary, (2) the Development
Agreement was a personal services contract that terminated upon
Michael’s death, and (3) the IRFR also terminated upon Michael’s
death. We “review a district court’s legal conclusions and ultimate
grant or denial of summary judgment for correctness, viewing the
facts and all reasonable inferences drawn therefrom in the light
most favorable to the nonmoving party.” Penunuri v. Sundance
Partners, 	Ltd., 	2017 	UT 	54, 	¶ 	14, 	423 	P.3d 	1150 	(quotation
simplified).
ANALYSIS
I. Trust Beneficiaries
¶27 	Angela contends that she, as Michael’s sole heir, is a Trust
beneficiary. Specifically, she argues that Michael’s beneficiary
interest did not pass to the Siblings pursuant to the Per Stirpes
Provision because the distribution of the Trust estate upon John’s
death was delayed, causing Michael’s beneficiary rights to vest at
the time of John’s death pursuant to the Deferral Provision. We
disagree.
5. This court had earlier denied Angela’s petition for interlocutory
review of the district court’s partial summary judgment decision
regarding the IRFR and of the court’s order requiring her to
release the recorded lis pendens.

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20250642-CA 	13 	2026 UT App 134
¶28 	“The primary object of a court, in construing the provisions
of a trust, is to carry out the intent of the trustor or trustors,” the
primary 	indicator 	of 	which 	is 	the 	“language 	of 	the 	trust
instrument.” Hull v. Wilcock, 2012 UT App 223, ¶ 27, 285 P.3d 815
(quotation simplified), cert. denied, 293 P.3d 376 (Utah 2012). Here,
the Per Stirpes Provision explicitly mandates that “[i]n the event
a deceased Primary Beneficiary should leave no issue, then said
deceased Primary Beneficiary’s share shall be distributed per
stirpes, on the principle of representation, to the remaining
Primary 	Beneficiaries 	or 	their 	then 	living 	issue 	upon 	their
reaching” age 25. Pursuant to this provision, because Michael
died without issue, his equal share in the Trust estate was to be
redistributed to the Siblings. Angela, as Michael’s widow, is
excluded as a beneficiary under this plain language.
¶29 	Under the Deferral Provision, on which Angela relies to
overcome the terms of the Per Stirpes Provision, “[i]f the Trust
directs distribution of the Trust Estate or division into separate
trusts, 	then 	the 	Trustee 	may, 	in 	the 	Trustee’s 	reasonable
discretion, 	defer 	that 	distribution 	or 	division 	for 	a 	period
reasonably necessary to wind up properly the affairs of the Trust.”
In such an event, “the Trustee shall make the distribution or
division as if it had taken place at the time prescribed . . . , and all
beneficiary rights in those Trust assets shall accrue and vest as of
the prescribed time.” Accordingly, for the Deferral Provision to
apply, 	two 	conditions 	must 	be 	met: 	(1) 	the 	Trust 	must
direct “distribution of the Trust Estate or division into separate
trusts” and (2) the trustee must exercise “reasonable discretion”
to “defer the distribution or division” for a reasonably necessary
period.
¶30 	Angela contends that both conditions were satisfied and
thus “Michael’s rights as trust beneficiary vested ‘as of’ the time
the distributions would have been made had they not been
deferred—meaning John’s death.” Addressing the first condition,
Angela asserts that the Trust directed a division of assets into
“separate 	trusts” 	via 	the 	Development 	Agreement, 	which
purported to convey various Trust properties to Michael so that

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20250642-CA 	14 	2026 UT App 134
he might redevelop the Coachman’s property and pursue other
objectives. She also asserts that the Development Agreement
created a “separate trust[]” to which the assets were to be
transferred. But this argument fails simply because the Deferral
Provision 	expressly 	states 	that 	“the 	Trust” 	must 	direct 	the
distribution or division of assets. Accordingly, the Development
Agreement, 	which 	is 	separate 	from 	the 	Trust, 	lacked 	the
authority to trigger the distribution contemplated in the Deferral
Provision.6
¶31 	Further, even assuming arguendo that the Trust properly
directed a transfer via the Development Agreement and that this
agreement successfully established “separate trusts” to which
Michael 	deferred 	such 	a 	transfer, 	the 	Deferral 	Provision 	is
nonetheless of no benefit to Angela. As an initial matter, Angela
does not explain how any distribution contemplated under the
Development Agreement would relate back, pursuant to the
Deferral Provision, to John’s death rather than to during John’s
lifetime. Indeed, the Development Agreement does not tie or
condition any contemplated transfer of assets out of the Trust to
John’s death, and Angela has not presented any evidence that
Michael exercised his discretion following John’s death to transfer
any assets out of the Trust. Angela also does not clarify how
backdating a distribution to John’s lifetime pursuant to the
Deferral Provision would act to vest Michael’s beneficiary interest
in the Trust. In any event, the Development Agreement directs
that upon its termination, “the net profits and/or assets and
properties held by” Michael and any business entities created by
him “shall be distributed and/or Conveyed to the Trust or the
requisite beneficial party.” And as discussed in Part II below, the
Development Agreement terminated upon Michael’s death. Thus,
even if the Deferral Provision backdated the transfer of assets to a
point prior to Michael’s death, the terms of the Development
Agreement still mandated that any such assets be returned to the
6. Because we conclude that the first condition was not satisfied,
we have no occasion to address Angela’s argument on the second
condition.

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Trust upon the contract’s termination—namely, upon Michael’s
death. Consequently, because any backdated distribution was
required to be returned to the Trust upon Michael’s passing, the
Deferral Provision did not vest any lasting beneficial rights in
Michael’s estate.
¶32 	Angela 	also 	asserts 	that 	the 	Trust 	document 	itself
satisfied the first condition, but we are not convinced that the
Trust 	document 	itself 	directed 	distribution 	of 	Trust 	assets
specifically 	upon 	John’s 	death. 	As 	for 	John’s 	personal
property, the 	Trust 	instructed 	the 	trustee 	“to 	abide 	by 	any
memorandum 	by 	[John] 	directing 	the 	disposition 	of
personal property 	and 	household 	effects.” 	Apart 	from 	the
Development Agreement, Angela has not pointed to any such
“memorandum” 	purporting 	to 	make 	a 	bequest 	of 	personal
property. And as discussed above, the Development Agreement
cannot serve as such a document because it expressly directs the
return of any transferred assets back to the Trust upon the
Development 	Agreement’s 	termination, 	which 	occurred 	at
Michael’s death.
¶33 	The Trust also contains no provision expressly directing
distribution of real property upon John’s death. To the contrary,
the Trust expressly instructed the trustee “to retain in the Trust
Estate the real property owned by the Trust Estate” and to “keep
the real estate in the Trust Estate together as much as is reasonable
in light of the circumstances as they evolve, and that distributions
to the Primary Beneficiaries not be completed until Trustee has
developed” 	the 	Coachman’s property. 	Indeed, 	although 	not
determinative, the Development Agreement itself acknowledged
that John’s “intent in creating the [Trust] was in part, to induce
and enable [Michael] to complete the plans, goals and projects”
that John and Michael had worked toward over the past 40 years.
And because the Coachman’s property had not been developed
by the time of Michael’s passing, it cannot be said that the Trust

Nikols v. Nikols
20250642-CA 	16 	2026 UT App 134
directed distribution of real property in the few months between
John’s and Michael’s deaths.7
¶34 	In sum, the district court correctly concluded that the
Deferral Provision did not supersede the plain terms of the Per
Stirpes Provision. Because Michael’s beneficiary interest did not
vest prior to his death, the district court properly ruled that
neither Angela nor Michael’s estate is a beneficiary of the Trust.
II. Termination of the Development Agreement
¶35 	Under contract law, a party’s death generally does not
discharge contractual obligations. See 30 Williston on Contracts
§ 77:71 (4th ed. 2026) (“The well-settled rule is that death alone
does not discharge contractual obligations.”). Rather, the law
presumes the assignability of the agreement, passing those rights
and obligations directly to the decedent’s heirs and successors. See
Clark v. Shelton, 584 P.2d 875, 877 (Utah 1978) (“In the absence of
a provision forbidding an assignment, an option contract is
presumed to be assignable[.]”). An exception to this general rule
occurs when the contract is personal in nature, meaning that “the
personal needs, characteristics or personality of the obligee are
dominant factors in the reason for contracting.” Id. See 17B C.J.S.
Contracts § 690 (2026) (stating that in a personal services contract,
the “personal qualities” of a party “constituted the particular
inducement to the contract”). In other words, a personal services
7. The Trust did instruct the trustee “to allocate and distribute the
rental income not reasonably needed to maintain and develop
said real property to its highest and best use in the reasonable
judgment of the Successor Trustee to (or to retain in Trust for the
benefit 	of, 	as 	applicable) 	the 	aforementioned 	Primary
Beneficiaries.” But Angela has not presented any evidence that the
Trust had any rental income that was not needed to maintain and
develop the properties. To the contrary, because the Coachman’s
property had not yet been developed, it follows that any rental
income would have been put toward those efforts pursuant to the
governing clause.

Nikols v. Nikols
20250642-CA 	17 	2026 UT App 134
contract “involves one party’s skill, trust, or confidence.” 6A C.J.S.
Assignments § 39 (2026). See id. (stating that under a personal
services contract, “the obligee has relied on the obligor’s honesty,
skill, 	reputation, 	character, 	ability, 	wisdom, 	or 	taste”); 	30
Williston on Contracts § 77:71 (stating that in personal services
contracts, 	“distinctly 	personal 	considerations 	are 	at 	the
foundation of the contract”). Personal services contracts are
subject 	to 	the 	implied 	condition 	of 	the 	performing 	party’s
continued life and capacity. See 17A Am. Jur. 2d Contracts § 656
(2026). Accordingly, the performing party’s death or incapacity
terminates the agreement and discharges all remaining duties. See
Restatement (Second) of Contracts § 262 (A.L.I. 1981) (“If the
existence of a particular person is necessary for the performance
of a duty, his death or such incapacity as makes performance
impracticable is an event the non-occurrence of which was a basic
assumption on which the contract was made.”).
¶36 	The 	line 	dividing 	non-assignable 	personal 	services
contracts from otherwise assignable contracts “is not clearly
defined.” See 17B C.J.S. Contracts § 691. “Contracts requiring
artistic or mechanical skill, ability, or training are generally
considered personal contracts,” but a contract may be deemed one
for personal services regardless of the underlying subject matter.
Id. § 690. Ultimately, beginning with the presumption favoring
assignability, the determination of whether a contract is personal
in nature turns on whether “the personal needs, characteristics or
personality of the obligee are dominant factors in the reason for
contracting.” Clark, 584 P.2d at 877. See Restatement (Second) of
Contracts 	§ 	318(2) 	(A.L.I. 	1981) 	(“[A] 	promise 	requires
performance by a particular person only to the extent that the
obligee has a substantial interest in having that person perform or
control the acts promised.”). This inquiry is “intensely fact
oriented,” 30 Williston on Contracts § 77:71, with each case being
“decided on its peculiar facts, including a consideration of the
language 	of 	the 	contract 	in 	the 	light 	of 	the 	surrounding
circumstances,” 17B C.J.S. Contracts § 690. In addition to the
subject matter of the contract and the degree of unique skill
required by the performing party, other potentially relevant

Nikols v. Nikols
20250642-CA 	18 	2026 UT App 134
factors include “the importance of trust and confidence in the
relation between the parties,” 30 Williston on Contracts § 77:71,
whether the acts called for by the contract may be performed just
as well by others, 17A Am. Jur. 2d Contracts § 657, and whether
the terms of the contract show that performance by others was
contemplated, id.
¶37 	Angela argues that several factors support the conclusion
that the Development Agreement was not a personal services
contract. 	She 	contends 	that 	the 	contemplated 	property
development entails standard commercial tasks that do not
require unique personal expertise and may be performed just as
effectively by a substitute party. She also argues that the Binding
Effect 	Provision, 	which 	explicitly 	binds 	the 	parties’ 	“heirs,
beneficiaries, assigns, successor[s], . . . and the like” to the terms
of the Development Agreement, demonstrates that John and
Michael 	“plainly 	contemplated 	performance 	by 	other
individuals.” Lastly, Angela asserts that the parties did not intend
the Development Agreement to terminate at Michael’s death. She
relies on the contract’s use of the term “irrevocable” in the
provisions addressing the IRFR and granting Michael for the
duration 	of 	the 	term 	of 	the 	Development 	Agreement 	the
“irrevocable right to commit and Convey” various Trust assets
“for the benefit and completion of” the development of the
Coachman’s 	property.8 	But 	even 	with 	the 	benefit 	of 	the
8. Angela further asserts that because John was well advanced in
years when he signed the Development Agreement, the parties
were necessarily aware that it was unlikely that he would survive
the contract’s 25-year term. But at issue here is not whether John’s
duties under the Development Agreement were personal in
nature and therefore not assignable, but rather whether Michael’s
were. See Clark v. Shelton, 584 P.2d 875, 877 (Utah 1978) (stating
that assignability turns on whether the assignment “would add to
or materially alter the obligator’s duty or risk” and that a contract
“is personal in nature, where the personal needs, characteristics
or personality of the obligee are dominant factors in the reason for
(continued…)

Nikols v. Nikols
20250642-CA 	19 	2026 UT App 134
presumption of assignability, these factors, when considered in
the context of the terms of the Development Agreement as a
whole, ultimately do not overcome the conclusion that the
contract is personal in nature.
¶38 	While the Development Agreement on its face concerns
real property development, its specific terms depart significantly
from 	customary 	commercial 	development 	contracts. 	The
Development 	Agreement 	is 	explicitly 	grounded 	in 	the
relationship between John and Michael, stating that John relied
heavily on the “endeavors, work, business advice, loyalty, love
and 	affection” 	and 	“Business 	Judgment” 	of 	Michael 	in
furtherance 	of 	his 	business 	ventures. 	The 	Development
Agreement referenced John and Michael’s shared vision, stating
that 	the 	various projects listed 	in 	the 	agreement 	had 	been
“envisioned, planned and implemented” and “worked toward
over 	the 	past 	40 	years 	or 	so” 	by 	them. 	The 	Development
Agreement also expressed John’s intent to fulfill past “promises”
and “commitments” to Michael, to reward Michael for his past
efforts, 	and 	“to 	further 	encourage 	and 	induce 	[Michael] 	to
continue [his] efforts and assume the burden of” completing the
redevelopment of the Coachman’s property and other named
projects. All these recitals emphasize the deeply personal and
relational 	reasons 	underlying 	John’s 	entering 	into 	the
Development Agreement.
¶39 	Further, the incredibly broad powers granted to Michael
underscore 	the 	immense 	personal 	trust 	on 	which 	the
Development 	Agreement 	was 	based. 	The 	Development
Agreement vested Michael with authority to manage John’s entire
personal and business estate, granted him “sole and absolute
discretion” to direct the listed projects, broadly waived “any and
all conflicts” of interest, and required John to appoint Michael as
the trustee and personal representative of any future trusts or
contracting”) (emphases added); 30 Williston on Contracts § 77:74
(4th ed. 2026) (“[I]t is only the death of the party whose pledge is
personal that ends the contractual arrangement.”).

Nikols v. Nikols
20250642-CA 	20 	2026 UT App 134
wills. This list further includes the provisions to which Angela
points that grant Michael the IRFR and the “irrevocable right to
commit and Convey” various Trust properties “for the benefit
and completion of” the development of the Coachman’s property.
These sweeping grants of authority far exceed the scope of
standard 	real 	estate 	development 	agreements. 	A 	successful
businessman 	such 	as 	John 	would 	have 	delegated 	these
extraordinarily broad powers only to someone he absolutely
trusted. Accordingly, these terms are inherently personal and
non-delegable covenants that a third-party simply could not step
in and perform in Michael’s place.
¶40 	Turning 	to 	the 	Binding 	Effect 	Provision, 	we 	are 	not
persuaded that it compels the conclusion that the Development
Agreement was not one for the personal services of Michael.
Although the provision purports to bind the parties’ “heirs,
beneficiaries, assigns, successor[s], . . . and the like” to the terms
of the Development Agreement, such standard boilerplate is not
necessarily dispositive and should not be read in isolation to
override 	the 	otherwise 	intensely 	personal 	nature 	of 	the
agreement. See Vogel v. Melish, 203 N.E.2d 411, 412–13 (Ill. 1964)
(stating that “in view of the detail of the stockholder’s agreement,
it is unreasonable to assume that the parties intended it to survive
the death of either of them and to be susceptible to performance
by their heirs or devisees when no provision for that contingency
is made in the agreement, other than the vague and general
terms” 	of 	a 	boilerplate 	provision 	binding 	the 	parties’
“administrators, executors, heirs and personal representatives” to
the agreement) (quotation simplified); Roeder v. Ferrell-Duncan
Clinic, Inc., 155 S.W.3d 76, 81, 84, 87 (Mo. Ct. App. 2004) (holding
that a contract was one for personal services despite “boilerplate
language” stating that the agreement was binding on the parties’
“successors, 	heirs, 	beneficiaries, 	assigns 	and 	personal
representatives”) 	(quotation 	simplified); 	17A 	Am. 	Jur. 	2d
Contracts § 656 (stating that the implication that a personal
services 	contract 	terminates 	upon 	a 	party’s 	death 	“is 	not
necessarily negated by the fact that there is a provision in the
contract binding the promisor’s personal representatives”). And

Nikols v. Nikols
20250642-CA 	21 	2026 UT App 134
here, the strong personal relationship, profound trust, and shared
vision of the parties, which is evidenced by the terms of the
Development Agreement as a whole, are sufficient to overcome
such boilerplate language.
¶41 	These factors were clearly “dominant factors in the reason
for” 	John 	entering 	into 	the 	Development 	Agreement 	with
Michael. See Clark, 584 P.2d at 877. Thus, despite the assumption
favoring assignability, the district court correctly concluded that
the Development Agreement was a contract for personal services
that terminated upon Michael’s death.
III. The IRFR
¶42 	The IRFR granted Michael the “Irrevocable Right of First
Refusal . . . to acquire certain Projects, assets, proceeds, from
[John], the [Trust], and/or Business Entities formed under” the
Development Agreement at 75% of the lesser of the fair market
value or a bona fide third-party purchase offer. Under its terms,
Michael was granted “the sole right to exercise his IRFR at any
time . . . for the term of” the Development Agreement. The IRFR
was also “freely assignable.” The stated purpose of the IRFR was
to act as a “separate benefit” to “induce [Michael] to use his best
efforts in the completion of and development of the Projects”; to
serve as “additional consideration,” ensuring that Michael was
“adequately compensated” and “able to reap the fruits of all of
[his] 	efforts”; 	and 	to 	allow 	Michael 	“to 	fully 	recover 	[his]
Contribution, that ha[d] substantially benefited” John and the
Trust.
¶43 	Although Angela acknowledges that a right of first refusal
is generally “personal to the parties and expires on death,” 30
Williston on Contracts § 77:68 (4th ed. 2026), she contends that
notwithstanding 	its 	label 	as 	an 	“Irrevocable 	Right 	of 	First
Refusal,” the IRFR is in substance a “dual-option provision” that
encompasses 	both 	a 	standard 	right 	of 	first 	refusal 	and 	an
independent 	purchase 	option—the 	latter 	of 	which, 	Angela
asserts, does not expire upon the optionee’s death. To clarify, “[a]

Nikols v. Nikols
20250642-CA 	22 	2026 UT App 134
right of first refusal is a prerogative limiting the owner’s right to
freely dispose of his property by compelling him to offer it first to
the party who has the first right to buy.” Schmidt v. Downs, 775
P.2d 427, 430 (Utah Ct. App. 1989). By contrast, “[a]n option
contract is a continuing offer, supported by consideration, which
the promisor is bound to keep open.” Coulter & Smith, Ltd. v.
Russell, 966 P.2d 852, 859 (Utah 1998). It “consists of the following
two elements: (1) an offer to sell, which does not become a contract
until accepted; and (2) a contract to leave the offer open for a
specified time.” Id. (quotation simplified). Angela asserts that the
portion of the IRFR provision permitting the purchase of a Trust
property at 75% of a bona fide third-party offer constituted a right
of first refusal, while the portion addressing purchase of a Trust
property at 75% of its fair market value constituted a purchase
option.
¶44 	Angela additionally argues that in the event we conclude
that the Development Agreement was a contract for personal
services, the IRFR was “independent of the other covenants in the
Development Agreement” and survived Michael’s death because
the IRFR itself did not carry the characteristics of a personal
services contract.9 In support of her argument, Angela points to
the IRFR provision’s statement that the IRFR is “freely assignable”
and intended to act as a “separate benefit,” as well as to the
9. We are not entirely persuaded on this point. One of the stated
purposes of the IRFR was “to induce [Michael] to use his best
efforts in the completion of and development of the Projects,”
which mirrored the Development Agreement’s stated purpose “to
further encourage and induce [Michael] to continue [his] efforts
and assume the burden of” completing the redevelopment of the
Coachman’s property and several other named projects. And as
discussed in Part II above, John and Michael’s decades-long
working relationship and resulting shared vision of the projects,
as well as John’s affection for and deep trust in Michael, were
“dominant factors in the reason for” John entering into the
Development Agreement with Michael. See Clark v. Shelton, 584
P.2d 875, 877 (Utah 1978).

Nikols v. Nikols
20250642-CA 	23 	2026 UT App 134
Binding Effect Provision that purports to bind the parties’ “heirs,
beneficiaries, assigns, successor[s], . . . and the like” to the
Development Agreement.
¶45 	We need not delve too deeply into these arguments.
Regardless of whether the IRFR provision included a purchase
option or was limited to a right of first refusal, and regardless of
whether 	it 	was 	distinct 	from 	the 	rest 	of 	the 	Development
Agreement, any right to purchase Trust properties pursuant to the
IRFR 	provision 	expressly 	lasted 	“for 	the 	term 	of” 	the
Development Agreement. The right to exercise the IRFR thus
expressly 	depended 	on 	the 	continuing 	existence 	of 	the
Development Agreement. While the parties anticipated a term of
“not 	less than” 	25 	years, 	we 	have 	just 	concluded 	that 	the
Development Agreement terminated upon Michael’s death, see
supra Part II, so any purchase options embedded within the IRFR
provision likewise expired as a consequence of that termination.
CONCLUSION
¶46 	The district court correctly ruled that Angela, as Micheal’s
heir, is not a Trust beneficiary because the Deferral Provision did
not supersede the terms of the Per Stirpes Provision under the
facts of this case; that the Development Agreement constituted a
contract for personal services and thus it terminated at the time of
Michael’s death; and that the IRFR did not survive independently
of the Development Agreement but rather also expired at the time
of Michael’s death.
¶47 	Affirmed.10
10. Angela seeks an award of attorney fees incurred on appeal
pursuant to a clause in the Development Agreement awarding
such fees to the “prevailing party” of “any action . . . based upon
this Agreement.” Because Angela does not prevail on any of her
claims, we deny her request.