In re Trust Created Under the Will of Samuel M. Damon

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Electronically Filed
Supreme Court
SCWC-12-0000731
15-JUN-2017
09:08 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---
________________________________________________________________

TRUST CREATED UNDER THE WILL OF SAMUEL M. DAMON, Deceased
________________________________________________________________

SCWC-12-0000731

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000731; P. NO. 6664; EQUITY NO. 2816-A)

JUNE 15, 2017

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This case concerns the objections of two beneficiaries,

Christopher Damon Haig (“Christopher”) and Myrna B. Murdoch

(“Myrna”), of a testamentary trust created under the will of

Samuel M. Damon (“Damon Trust” or “Trust”), to the decisions
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made by the Probate Court of the First Circuit (“Probate Court”)1

that underpinned its August 2, 2012 Judgment, specifically the

approval of the Trust’s accounts from 1999 to 2003. The

Intermediate Court of Appeals (“ICA”) affirmed the Probate

Court’s August 2, 2012 Judgment. See In re Estate of Samuel M.

Damon & Trust Created under the Will of Samuel M. Damon (In re

Trust of Damon), No. CAAP-12-0000731 (App. June 2, 2016) (mem.).

Separately, Christopher and Myrna each timely applied for a

writ of certiorari from the July 11, 2016 Judgment on Appeal

entered by the ICA pursuant to its June 2, 2016 Memorandum

Opinion (“Mem. Op.”). Among other things, both Christopher and

Myrna assert that the Trustees violated their duty to inform

beneficiaries pursuant to trust law and Hawaiʻi Revised Statutes

§ 560:7-303 (2006), that their due process rights were violated

when they were not granted access to documents disclosed to the

court-appointed Master by the Trustees of the Damon Trust

(“Trustees”) thereby preventing them from making informed

objections to the Master’s Report regarding the Trust’s accounts

from 1999-2003, and that the Trustees breached their fiduciary

duty to keep full, accurate, and orderly records of the status

1
The Honorable Derrick H.M. Chan presided.

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of the Trust’s administration when certain documents went

inexplicably missing.2

2
Christopher’s Application presents four questions:

1. Whether the ICA made grave errors of law in denying a
beneficiary the right to review trust records at the time
of account approval necessary to submit proper objections,
where such denial is obviously inconsistent with Hawaii
Supreme Court and federal court decisions.

2. Whether the ICA made grave errors of law by denying a
beneficiary’s rights to constitutional procedural due
process in holding secret, ex parte proceedings between the
Master and Trustees, and whether this denial is obviously
inconsistent with Hawaii Supreme Court and federal court
decisions stating that it is unconstitutional to prejudge a
case before giving a party reasonable access to the
information and an opportunity to present his case.

3. Whether the ICA made grave errors of law when it
ignored a beneficiary’s claim for breach of fiduciary
duties relating to the trustees’ loss of books and records
for the Trust.

4. Whether the ICA made grave errors of law in holding
that a beneficiary waived all objections to the sale of
Trust assets without a hearing where the Trustees failed
to: (1) obtain prior court approval of the sale in
violation of [HRS] § 554A-5; (2) disclose their personal
self-interest in the transaction; and (3) follow their own
conflicts of interest policy.

Myrna’s Application presents three questions:

[1]. Whether the ICA erred in affirming the probate
court’s decision that improperly rubber-stamped the
Master’s Report, refused to compel the Trustees to produce
documents, and violated [Myrna’s] constitutional right to
due process.

[2]. Whether the ICA erred by misapplying the presumption
afforded to trustees under Campbell because the Trustees
had no discretion whether to apply the statutory and common
law duty to keep Myrna reasonably informed.

[3]. Whether the CA [sic] erred in applying too
restrictive a threshold to the claim that the Trustees
committed spoliation, erred in applying the Campbell
presumption to the issue of spoliation, and erred in
affirming the probate court’s decision in light of the
spoliation.

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For the reasons discussed, the ICA erred in affirming the

Probate Court’s approval and adoption of the Master’s Report

without first granting Christopher’s and Myrna’s requests to

access Trust administration documents, contrary to the

requirements of HRS § 560:7-303.

II. Background

This probate case was previously heard by this court

regarding a separate issue. See In re Estate of Damon, 119

Hawaiʻi 500, 199 P.3d 89 (2008) (holding that the court-appointed

master was disqualified due to a conflict of interest and that

objector-beneficiary’s challenge to master’s appointment was

timely). Accordingly, some of the following factual and

procedural background is repeated from that opinion.

A. Factual Background

On November 10, 1914, a testamentary trust was
created by the Last Will and Testament of Samuel M. Damon
(“Trust”). Samuel M. Damon died on July 1, 1924.
During the 1999–2003 accounting period, the Trustees
managed the Trust’s assets with roughly half of its value
in publicly traded securities and the other half in real
estate. The securities portion of the Trust’s assets
consisted mostly of a 13% interest in BancWest Corporation
common stock. The real estate portion of the Trust’s
assets consisted primarily of prime industrial and
commercial lands in Honolulu under long-term leases, a
sizeable cattle ranch on the island of Hawaiʻi, two walnut
ranches located in California, and an industrial property
located in California.
In 2001, the Trust sold its entire 13% interest in
BancWest Corporation common stock. In 2003, the Trust sold
its prime industrial and commercial land in Honolulu, two
walnut ranches, and a significant portion of real estate
located on the island of Hawaiʻi. The net proceeds from
these transactions has [sic] been reinvested into a
diversified securities portfolio that is being advised and
managed by Goldman, Sachs & Company.

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In re Estate of Damon, 119 Hawaiʻi at 501–02, 199 P.3d at 90–91.

The Trust terminated on November 9, 2004 when the last

measuring life, Samuel M. Damon’s granddaughter, Joan Damon

Haig, passed away. On termination, the Trust’s estate was

valued at $836 million. There is no dispute that Christopher

and Myrna were beneficiaries of the Trust from 1999 to 2003.3

According to counsel for the Trustees, Christopher’s and Myrna’s

interests in the Trust total “slightly over three percent [3%].”

Three percent of $836 million is approximately $25 million.

B. Procedural Background

On April 30, 2004, the Trustees filed a “Petition for

Approval of 1999, 2000, 2001, 2002 and 2003 Income and Principal

Accounts” (“Petition”) in Equity No. 2816-A and Probate No.

6664. The Petition represented that the Trustees

sent annually to all adult beneficiaries who are entitled
to income by the terms of the Will copies of their annual
accounts for the calendar years 1999, 2000, 2001, 2002 and
2003, showing detailed expenditures of [sic] receipts and
income and principal for these years, together with
inventories as of the end of each year, and copies of
Consolidated Financial Statements and Schedules of the
Estate of S.M. Damon, and the Independent Auditor’s Reports
prepared by KPMG LLP, for each year.

(footnote omitted).

After the Probate Court’s initially appointed master for

the Petition was disqualified upon Christopher’s objections, see

In re Estate of Damon, 119 Hawaiʻi 500, 199 P.3d 89, the Trustees

3
Christopher is a son of Joan Damon Haig and the brother of one of the
Trustees, David Haig (“David”). Myrna was previously married to David.

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petitioned for another court-appointed master to examine the

Estate’s accounts. Christopher objected to the Trustee’s

petition for the appointment of another master, and instead

filed a “Petition for Assignment to Civil Trials Calendar of the

First Circuit Court” (“First Assignment Petition”) on February

11, 2010, asserting the following issues regarding the Trust’s

1999-2003 accounts:

1. Whether the trustees adequately managed the estates’
[sic] securities portfolio[.]
2. Whether the trustees obtained a satisfactory premium
for the First Hawaiian Bank stock.
3. Whether the trustees obtained fair market value for the
real estate portfolio of the trust.
4. Whether the trustees had conflicts of interest in the
foregoing matters.

Myrna, pro se, appeared to join in Christopher’s concern

regarding the appointment of a new master and his request for

the assignment of the case to the civil trials calendar. The

hearing for the First Assignment Petition was set for April 1,

2010, which fell after the date set for the court’s hearing on

the appointment of a new master.

At a hearing on February 18, 2010, the Probate Court

granted the Trustee’s petition for the appointment of a new

master (“Master”), who was appointed by Order of Reference filed

March 22, 2011. In accord with Hawaiʻi Probate Rules (“HPR”)

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Rule 29,4 that Order stated that “[t]he [Trustees] shall . . .

make all books and records of the Damon Estate available to the

Master.”

The court held a hearing on the First Assignment Petition

on April 1, 2010. After hearing argument from the parties, the

court decided to continue the matter until the court had an

opportunity to review the Master’s Report.5

On October 7, 2011, the Probate Court received

Christopher’s “Petition to Renew Request for Assignment of Case

to Circuit Court Pursuant to Probate Rule 20 or in the

Alternative, for Appointment of a Discovery Master”

(“Christopher’s Renewed Assignment Petition”). On October 10,

2011, through counsel, Myrna similarly filed a “Petition for

Assignment of Case to Circuit Court Pursuant to Probate Rule

20(a) through 20(c) or in the Alternative, for an Order Pursuant

to Probate Rule 20(d) Compelling Discovery and Appointing a

Discovery Master” (“Myrna’s Assignment Petition”). Both

Christopher’s Renewed Assignment Petition and Myrna’s Assignment

Petition asserted that each had requested information from the

Trustees regarding Trust administration, those requests were

denied or ignored, and that when assistance was sought from the
4
“The master shall have unlimited access to the books and records of the
fiduciary with respect to the trust or estate that are not protected by
privilege . . . .” HPR Rule 29.
5
Court minutes reflect that “by agreement of counsel, [the First Assignment
Petition] [wa]s continued until moved on in both [probate and equity] cases.”

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Master, the Master stated that she did not have the power to

compel the Trustees to provide discovery and advised Myrna and

Christopher to take up the issue with the Probate Court.

A hearing on Christopher’s Renewed Assignment Petition and

Myrna’s Assignment Petition was held on December 1, 2011. At

the hearing, the Master indicated that the Report would not be

completed until sometime in mid-February 2012 because deadlines

for submissions were suspended pending the outcome of

Christopher’s and Myrna’s petitions. The Probate Court judge

reminded the parties that the First Assignment Petition had been

continued so that the Master’s Report could be completed. The

court also indicated the parties would be better able to focus

on discrete issues of concern after the Master’s Report issued,

which would limit the scope of any potential discovery.

Christopher explained that he filed the Renewed Assignment

Petition because “[al]though the trustees provided information

in the past, they have now refused.” Christopher and Myrna

argued that they had a right as beneficiaries to the requested

information, or, at the very least, information that was

disclosed to the Master, and that they had already narrowed

their objections. In their memoranda, Christopher and Myrna

each cited to HRS § 560:7-303, Bogert’s on Trusts § 962 (“Duty

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to Respond to Beneficiaries’ Requests for Information”),6 and the

Restatement (Second) of Trusts § 173 (“Duty to Furnish

Information”),7 to show that the Trustees had a duty to provide

them with the requested Trust documents and information.

Moreover, because the Master’s document review was in part based

on the general objections already noted by Christopher and

Myrna, they explained they would be unable to “submit . . . more

meaningful objection[s]” to the Master if they did not get

access to those very documents provided to the Master by the

Trustees. As an example, Christopher’s memorandum cited his

securities and real estate experts, who indicated “they cannot

[issue] a report unless they have more information.” The

Trustees countered that “[t]he Order of Reference by definition
6
The Duty to Respond to Beneficiaries’ Requests for
Information
Generally, if a beneficiary of a trust requests
information about the trust from the trustee, the trustee
must promptly furnish it. The duty to provide information
about the trust property and its administration in response
to a request from a beneficiary has long been recognized by
the common law and has been codified in most jurisdictions.
Although the duty is fundamental and widely if not
universally recognized, it is subject to several
limitations. First, the duty extends only to information
requests that are reasonable. . . .

Bogert’s on Trusts § 962 (3d ed. 2010) (footnotes omitted).
7
Duty to Furnish Information
The trustee is under a duty to the beneficiary to give him
upon his request at reasonable times complete and accurate
information as to the nature and amount of the trust
property, and to permit him or a person duly authorized by
him to inspect the subject matter of the trust and the
accounts and vouchers and other documents relating to the
trust.

Restatement (Second) of Trusts § 173 (1959).

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is an ex parte process. We are required to meet with the

Master, again, as the eyes and ears of the Court and provide her

with access to the books and records. We’re doing that.”

The Probate Court concluded that Christopher and Myrna

failed to show that discovery was necessary prior to the

completion of the Master’s Report. The court emphasized that

Christopher’s and Myrna’s issues were preserved, and that they

would be given an opportunity to respond to the Master’s Report.

Accordingly, the court denied their petitions.8

The Master’s Report, concluding the Trust’s 1999–2003

income and principal accounts should be approved, was filed on

March 9, 2012. In it, among other things, the Master noted the

following:

Your Master verified the accuracy and reliability of
the Trust’s financial accounts by examining the statements
of assets and liabilities, income and expenses, and random
examination of the 2003 receipts and invoices. The 1999-
2002 receipts and invoices were unlocatable and, according
to Controller Mizuno, were probably destroyed as part of
the Trust’s regular document culling process. Controller
Mizuno assured the Master that he has seen and audited most
of the 1999-2002 receipts and invoices when he was part of
the KPMG LLP (hereinafter KPMG) audit team and approved
some of the 2002 receipts and invoices when he was hired as
the Estate’s Controller in October 2002. The 1999-2003
annual statements, which were mailed annually to all
Beneficiaries, were created from the receipts and invoices.
He also confirmed that the Trust’s internal controls
requiring at least three levels of approval, including
those of the Trustees, were uniformly followed in all of
the years in the 1999-2003 Accounts Period.
The Damon Trust accounts are annually audited by KPMG
who issued annual “Independent Auditors’ Report” of its
findings. The audits process included, inter alia, random
reviews of the receipts and invoices to confirm that
8
The record does not reflect whether the court ruled on the First Assignment
Petition.

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internal controls, such as the approval process for all
invoices, were in place and properly followed. KPMG’s
audits are attached to the 1999-2003 Accounts Petition.
Based on the examination of the financial statements,
receipts, and KPMG’s annual audits, your Master is
satisfied that the Trust’s 1999 - 2003 financial accounts
as presented to the Probate Court are fair and accurate.

At a status conference on March 20, 2012, the court set the

following deadlines: April 25, 2012 for responses or objections

to the Master’s Report; May 25, 2012 for any reply; June 21,

2012 for the hearing on the Trustee’s Petition.

On April 17, 2012, Christopher submitted to the Probate

Court a “Petition to Compel Production of Documents and Continue

Deadline to Respond to Master’s Report” (“Petition to Compel”),

which was joined by Myrna. The Trustees objected to the

Petition to Compel on numerous grounds, including that Myrna’s

requested documents were irrelevant to the Trustee’s Petition,

or were ones she already received from the Trustees or could

have received from other sources. The Petition to Compel was

set for a May 31, 2012 hearing.

Concurrent to submitting briefing on the Petition to

Compel, both Myrna and Christopher timely submitted their

objections to the Master’s Report on April 25, 2012.

Christopher maintained that although he submitted general

objections to the Master’s Report, he was unable to adequately

and completely respond to the Master’s Report because he was not

provided with the documents he requested of the Trustees. On

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May 25, 2012, the Master and Trustees filed their responses to

these objections.9

At the May 31, 2012 hearing on the Petition to Compel, the

Probate Court listened to the parties’ arguments but made no

additional inquiries or comments. The Probate Court ruled on

the Petition to Compel by way of a minute order issued on June

19, 2012:

After review of the record and pleadings herein,
review of the Master’s Report filed on March 9, 2012 and
objections and responses thereto, and having considered the
representations, arguments and objections made, the court
hereby denies the Petition [to Compel].
The court finds that there is no basis to compel the
trustees to produce all the documents reviewed by the
Master. The court also denies the Petitioner’s request to
transfer the matter to the civil trials calendar.
Based on the foregoing, the court denies the request
to continue the deadline for the beneficiaries to respond
to the Master’s Report.

(some capitalization omitted). The ruling was formalized in the

Probate Court’s July 6, 2012 “Order Denying Beneficiary

Christopher Damon Haig’s Petition to Compel Production of

Documents and Continue Deadline to Respond to Master’s Report,

Filed April 18, 2012.”

At the June 21, 2012 hearing regarding the Petition and the

Master’s Report, Christopher and Myrna primarily argued that the

Petition should not be granted because they were not given an

opportunity to review the underlying Trust documents examined by

9
Past the court-imposed deadline of May 25, 2012, the parties continued to
file briefs. On June 8, 2012, Christopher filed supplemental objections, and
Myrna filed a reply with the Master. On June 18, 2012, the Trustees
responded to Christopher’s and Myrna’s June 8, 2012 filing.

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the Master in her preparation of the Report so that they may

better articulate objections. They also requested an

evidentiary hearing. The Probate Court entered a minute order

on July 3, 2012, stating:

After review of the record and pleadings herein,
review of the Master’s Report filed on March 9, 2012 and
objections and responses thereto, and having considered the
representations, arguments and objections made, the court
hereby grants the Petition, subject to the recommendations
of the Master, which are approved and adopted. The
Master’s fees are approved.

(some capitalization omitted). The “Order Granting Petition for

Approval of 1999, 2000, 2001, 2002 and 2003 Income and Principal

Accounts” was filed on August 2, 2012. Judgment was entered on

August 2, 2012 as to that order in addition to the orders

denying Christopher’s Renewed Assignment Petition, Myrna’s

Assignment Petition, and Christopher’s Petition to Compel to

which Myrna had joined.10

C. Appeal to the ICA

Myrna and Christopher each timely filed a Notice of Appeal

with the ICA indicating that they appealed the August 2, 2012

Judgment “and all orders, findings of fact, rulings and

conclusions of law, either stated or subsumed therein which the

10
The judgment did not address any order that may have issued with respect
to the First Assignment Petition.

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Judgment made final.”11 The ICA summarized Christopher’s and

Myrna’s combined points of error as:

[Christopher and Myrna contend] the probate court erred
when it: (1) did not compel trustees David M. Haig, Paul
Mullin Ganley, and Walter A. Dods, Jr. . . . to respond to
requests for information or make documents available to
Appellants; (2) adopted the “Petition for Approval of 1999,
2000, 2001, 2002 and 2003 Income and Principal Accounts” .
. . without an independent review; (3) approved the
Trustees’ 1999-2003 Accounts Petition despite evidence of
spoliation; (4) did not assign the case to the trial court
docket; (5) denied [Christopher’s] conflict of interest
objections to the sale of BancWest Corporation . . . stock;
and (6) denied [Christopher’s objections to the sale of
real estate assets.

In re Trust of Damon, mem. op. at 1–2 (footnote omitted).

The ICA began its analysis with “the well-settled principle

that trustees benefit from a presumption of regularity and good

faith.” In re Trust of Damon, mem. op. at 6 (citing In re

Estate of Campbell, 42 Haw. 586, 607 (Haw. Terr. 1958))

(quotation omitted). Hawaiʻi law “imposes upon the person

questioning the trustee’s action the burden of overcoming the

presumption, but which requires the trustee ultimately to

justify his action if sufficient evidence is produced to

overcome the presumption.” Id. (citing In re Estate of

Campbell, 42 Haw. at 607).

With respect to the first point of error, the ICA focused

11
As Christopher was the second party to file a “notice of appeal,” he re-
titled his Notice of Appeal as a Notice of Cross-Appeal, and subsequently re-
filed it. Myrna also filed a “Notice of Cross Appeal” on September 7, 2012,
although it is unclear why she did so.

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on the portion of HRS § 560:7-30312 that states, “The trustee

shall keep the beneficiaries of the trust reasonably informed of

the trust and its administration . . . .” The ICA noted that

Christopher and Myrna received annual accounts and audited

financial statements for each year of the 1999-2003 accounting

period, did not object to those documents at the time of

receipt, and therefore were kept “reasonably informed,” as noted

in the Master’s Report. In re Trust of Damon, mem. op. at 8–9.

Moreover, the ICA noted that Christopher’s and Myrna’s

repeated requests for a “large swath of information” from the

Trustees did not point to specific reasons for the requested

documents. In re Trust of Damon, mem. op. at 9. The ICA

therefore concluded that Christopher and Myrna failed to meet

their burden of overcoming the presumption of regularity and

12
The statute states in relevant part:

Duty to inform and account to beneficiaries. The trustee
shall keep the beneficiaries of the trust reasonably
informed of the trust and its administration . . . . In
addition:

. . . .

(2) Upon reasonable request, the trustee shall
provide the beneficiary with a copy of the terms of the
trust which describe or affect the beneficiary’s interest
and with information about the assets of the trust and the
particulars relating to the administration.

(3) Upon reasonable request, a beneficiary is
entitled to a statement of the accounts of the trust
annually and on termination of the trust or change of the
trustee.

HRS § 560:7-303.

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good faith of the Trustees because they did not show what they

would gain from the documents. See id. As such, the ICA

concluded the Probate Court did not err when it denied

Christopher’s and Myrna’s petitions to appoint a discovery

master. The ICA also appeared to have concluded that for these

same reasons, the Probate Court did not err when it denied the

Petition to Compel, nor were Christopher and Myrna deprived of

their due process rights when they were not granted access to

the same information made available to the Master. See id.

Relatedly, as to the fourth point of error, the ICA

concluded that the Probate Court did not err when it retained

the case on the probate calendar and denied the Petition to

Compel. Pursuant to HPR Rule 2013 and HRS § 560:1-302 (2006),14

the ICA determined that the Probate Court had wide discretion to

decline transferring the matter to the civil trials calendar or

to permit discovery. See In re Trust of Damon, mem. op. at 13.

13
“The court by written order may retain a contested matter on the regular
probate calendar or may assign the contested matter to the civil trials
calendar of the circuit court.” HPR Rule 20(a).
14
(a) To the full extent permitted by the Constitution and
except as otherwise provided by law, the court has
jurisdiction over all subject matter relating to:

(1) Estates of decedents . . . ;
. . .
(3) Trusts.

(b) The court has full power to make orders, judgments and
decrees and take all other action necessary and proper to
administer justice in the matters which come before it.

HRS § 560:1-302.

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Regarding the second point of error, Christopher and Myrna

had relied upon Mauna Kea Anaina Hou v. Board of Land & Natural

Resources, 136 Hawaiʻi 376, 363 P.3d 224 (2015), for their due

process arguments. However, the ICA observed the record shows

the Probate Court did not pre-judge the matter and carefully

reviewed the Master’s Report, see In re Trust of Damon, mem. op.

at 10–11, in contrast to the facts presented in Mauna Kea. The

ICA thus concluded this case was distinguishable from Mauna Kea.

Furthermore, because Christopher and Myrna were granted the same

access to the Master as the Trustees, and because the Master

addressed their objections in her Report, their due process

rights were not violated. In sum, the ICA concluded

Christopher’s and Myrna’s due process arguments lacked merit.

See In re Trust of Damon, mem. op. at 11.

As to the third point of error, the ICA summarized

Christopher’s and Myrna’s arguments as follows: “Appellants

contend that the Trustees committed spoliation because the

Trustees either destroyed or lost the 1999-2002 receipts and

invoices. Appellants argue that this destruction of evidence

necessitates the presumption that the 1999-2003 Accounts

Petition cannot be approved.” In re Trust of Damon, mem. op. at

13. The ICA noted that the Master had extensively reviewed

documents to ensure that the information contained in the

Trust’s accounting period was supported by other available

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documents, and that there was no evidence of intentional

document destruction. See id. at 15–16. Therefore, the ICA

concluded that given Christopher’s and Myrna’s failure to

overcome the presumption of good faith and regularity in favor

of the Trustees, their spoliation argument lacked merit. See

id. at 16.

With respect to the fifth and sixth points of error

concerning Christopher’s objections to the sale of the BancWest

stock and various parcels of real estate, the ICA determined

that the Probate Court did not err in affirming the Master’s

determination that Christopher’s objections to those sales were

barred by waiver and the doctrine of laches. See id. at 19.

The Master had found that Christopher approved the stock sale,

and the ICA noted that Christopher did not provide evidence to

the contrary. See id. at 17. As to the real estate

transactions, the ICA concluded that because Christopher did not

object to them until over seven years later, the doctrine of

laches applied, and therefore, Christopher’s argument that the

Probate Court erred by approving the Master’s Report as to these

transactions without first allowing him to review Trust records

lacked merit. See id. at 17, 19.

D. Applications for Writ of Certiorari

Christopher and Myrna each timely applied for a writ of

certiorari from the July 11, 2016 Judgment entered by the ICA

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pursuant to its June 2, 2016 Memorandum Opinion.15 Briefly

stated, both Christopher and Myrna assert that the ICA gravely

erred when it affirmed the Probate Court’s adoption of the

Master’s Report. They argue that the Master’s Report should not

have been adopted as they were not first granted access to Trust

documents as they requested, or at a minimum, to the same Trust

documents that were made available to the Master. Without such

access, they were unable to raise meaningful, specific

objections to the Master’s Report by way of their own experts’

analyses or otherwise. For example, Christopher argues that

without access to Trust documents, he was unable to contest the

Master’s conclusion that he had waived any objections to the

sale of BancWest stock. Without the ability to raise meaningful

objections for the Probate Court’s consideration, Myrna

additionally argues that the Probate Court “rubber stamped” the

Master’s Report.

According to both Christopher and Myrna, as beneficiaries,

they have a right by way of statutory law, common law, and due

process to obtain trust administration documents or information

from the Trustees. Myrna argues that any presumption of

“regularity and good faith” afforded the Trustees does not

abrogate the Trustees’ duty to provide information related to

15
The questions presented by Christopher and Myrna are quoted at supra note
2.

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the administration of the Trust when requested by a beneficiary,

because such a duty: (1) is not discretionary, (2) is not

“limit[ed] to time periods prior to the Petition being filed,”

(3) “does not end at the Probate Court door,” and (4) is not

curtailed by the appointment of a master. Christopher also

asserts that the ICA erred when it stated he needed to justify

his request for Trust documents before being granted access to

them.

Christopher and Myrna also take issue with the Master’s

observation that certain Trust documents relating to the 1999-

2003 accounting period were destroyed or missing. Christopher

argues that this fact alone demonstrates a breach of fiduciary

duty that requires the Probate Court to resolve “doubts or

discrepancies” against the Trustees; Myrna argues that the

Master’s Report should not have been adopted by the Probate

Court without a determination as to whether spoliation occurred.

In either case, it appears that Christopher and Myrna assert

that the Master’s Report should not have been adopted because,

at a minimum, they should have been granted access to the same

documents as the Master in order to determine whether the Master

was correct in stating that she could nevertheless verify the

Trust accounts without the missing receipts or other documents,

thus permitting them to raise appropriate objections to the

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Probate Court if necessary. Myrna also appears to ask that this

court clarify trust law and standards on spoliation.

Although Christopher had taken issue with the ex parte

meetings held by the Master, at oral argument, counsel for both

Christopher and Myrna indicated that the remedy they now seek is

access to the Trust documents previously requested, including

those reviewed by the Master, and for the case to be remanded.

With respect to Christopher’s and Myrna’s requests for

documents, the Trustees do not dispute they have a duty to keep

beneficiaries reasonably informed pursuant to HRS § 560:7-303.

However, they assert that the duty is not unlimited, but rather

extends only to requests that are reasonable. The Trustees

emphasize that Christopher’s and Myrna’s requests for copies of

documents reviewed by the Master were not reasonable because

they were “very overbroad” “fishing expedition-type request[s]”

and that the Hawaiʻi Probate Rules require that only the Master

be granted unlimited access to Trust documents.

Moreover, the Trustees assert that they more than satisfied

the disclosure requirements of HRS § 560:7-303 as they had

provided annual voluminous records to beneficiaries and had an

“‘open door’ policy [until the Estate office closed in 2007]

where Beneficiaries could meet with the Trustees and Estate

staff, review Estate records and documents, and ask questions on

trust-related matters.” According to the Trustees, both Myrna

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and Christopher used that opportunity multiple times during the

1999–2003 accounting period.16 The Trustees acknowledged,

however, that at no point in time were Christopher and Myrna

granted access to each of the documents reviewed by the Master.

III. Standard of Review

“Interpretation of a statute is a question of law which

[is] review[ed] de novo.” Kikuchi v. Brown, 110 Hawaiʻi 204,

207, 130 P.3d 1069, 1072 (App. 2006) (internal quotation marks

and citation omitted).

IV. Discussion

The multiple issues raised by Christopher and Myrna

fundamentally turn on the interpretation of HRS § 560:7-303,

which grants beneficiaries the right to request of trustees

“particulars relating to the administration” of the Trust,

including access to documents. Both Christopher and Myrna

submitted requests for Trust documents to the Trustees. When

the Trustees declined to address their requests, Christopher and

Myrna sought assistance from the Master. When that route

provided no relief,17 they filed petitions with the Probate Court

16
The Trustees also point out that after the first master was disqualified
due to a conflict of interest, see In re Estate of Damon, 119 Hawaiʻi 500, 199
P.3d 89, that Myrna attempted to raise additional objections before the
subsequent master that were not initially raised before the first. This does
not appear to address Myrna’s subsequent request for Trust documents,
however.
17
The Master was correct in declining to resolve Christopher’s and Myrna’s
requests for discovery and instead directing them to the Probate Court.

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to compel the Trustees to provide the requested documents, to

appoint a discovery master, or to transfer the case to the civil

trials calendar so that discovery may proceed under the Hawaiʻi

Rules of Civil Procedure. The Probate Court denied the motions,

stating that with respect to the Petition to Compel, Christopher

and Myrna had “no basis to compel the trustees to produce all

the documents reviewed by the Master.” Thus, at the core of

Christopher’s and Myrna’s petitions and their appeals to this

court are their requests for Trust administration documents

pursuant to HRS § 560:7-303.

As conceded by the Trustees, a trustee’s duty to inform

beneficiaries under HRS § 560:7-303 does not cease when an

accounting is filed in probate court or a master is appointed.

For the following reasons, after considering the statute’s plain

language, its legislative history, and established treatises, we

conclude that the ICA erred in affirming the Probate Court’s

denial of the Petition to Compel, and therefore also erred in

affirming the Probate Court’s “Order Granting Petition for

Approval of 1999, 2000, 2001, 2002 and 2003 Income and Principal

Accounts.”

A. The Plain Language of HRS § 560:7-303 Does Not Require a
Beneficiary to Overcome the Presumption of Good Faith
Afforded Trustees

According to the ICA, Christopher’s and Myrna’s requests

for Trust administration documents were not reasonable primarily

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because Trustees had routinely provided beneficiaries with

annual financial statements and accounts, and Christopher and

Myrna failed to provide specific reasons why they needed

documents beyond these statements. In particular, the ICA

pointed out that because Christopher and Myrna were unable to

articulate what they hoped to gain from the requested documents,

they had “fail[ed] to meet their burden of overcoming the

presumption of regularity and good faith of the Trustees.” In

re Trust of Damon, mem. op. at 8–9.

We now consider whether the factors considered by the ICA

were appropriate in light of the plain language of HRS § 560:7-

303, which states in relevant part:

Duty to inform and account to beneficiaries. The trustee
shall keep the beneficiaries of the trust reasonably
informed of the trust and its administration . . . . In
addition:

. . . .

(2) Upon reasonable request, the trustee shall
provide the beneficiary with a copy of the terms of the
trust which describe or affect the beneficiary’s interest
and with information about the assets of the trust and the
particulars relating to the administration.

(3) Upon reasonable request, a beneficiary is
entitled to a statement of the accounts of the trust
annually and on termination of the trust or change of the
trustee.

The relevant portion of the statute clearly imposes three

separate duties on trustees. The first is an affirmative duty18

18
See Eugene F. Scoles, “Administration of Trusts,” in 2 Uniform Probate
Code Practice Manual 588, 595 (Richard V. Wellman ed., 2d ed. Am. Law Inst.
1977) (“Scoles on Trusts”) (characterizing the initial duty to inform
(continued . . .)

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to “keep the beneficiaries . . . reasonably informed of the

trust and its administration.” The second and third duties

outlined in parts (2) and (3), respectively, spring to life

“upon reasonable request” of a beneficiary. Because these

duties are distinct, a trustee’s compliance with, for example,

two of the three duties, does not abrogate responsibility for

the third.

Accordingly, although trustees may fulfill their

affirmative duty by supplying annual accountings to a

beneficiary, trustees must still provide “information about the

assets of the trust and the particulars relating to the

administration” upon the beneficiary’s “reasonable request.”

HRS § 560:7-303(2). Put another way, by a plain reading of the

statute, the distribution of annual accountings that may provide

information similar to that requested does not alter the

analysis of a request’s “reasonableness” — it neither heightens

the standard of “reasonableness” applied to beneficiary

requests, nor does it undermine the degree of “reasonableness”

(. . . continued)
beneficiaries in [Uniform Probate Code] [s]ection 7-303 as an “affirmative”
one).

The 1976 House Testimony Folder for S.B. 79 (later enacted and codified
at HRS § 560:7-303) contained a copy of UPC Notes, July 1972. For an
analysis of the trust provisions in the UPC, that publication referred to an
essay by Eugene F. Scoles, “Administration of Trusts,” contained in the first
edition of the Uniform Probate Code Practice Manual. Although the first
edition is not readily available, the second edition notes that Scoles’ essay
is “identical to that contained in the original Manual.” Scoles on Trusts,
at 588.

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of the requests. The ICA therefore erred when it concluded that

because the Trustees already provided beneficiaries with annual

financial statements and accounts, Christopher and Myrna were

required to provide additional reasons to overcome the

presumption of regularity and good faith of the Trustees.

That Christopher’s and Myrna’s requests “covered a large

swath of information” also does not bear on whether their

requests were “reasonable.” HRS § 560:7-303(2) does not

condition a trustee’s duty on the complexity or numerosity of a

trust’s transactions. Unlike the legions of documents that

might result from requests for unlimited access to trust

records, which courts have denied, see, e.g., Bogert’s on Trusts

§ 962 n.8 (3d ed. 2010) (cases cited), here, Christopher and

Myrna requested the documents reviewed by the Master, who

focused on discrete issues during a discrete period. Thus, the

volume of those documents relates more to the nature of the

administrative activity of the Trust rather than to any

unwieldly scope of the request, and therefore does not weigh

against the “reasonableness” of Christopher’s and Myrna’s

requests. See, e.g., Strauss v. Superior Court, 224 P.2d 726,

731 (Cal. 1950) (“The fact that the [trustee] may find it

inconvenient or troublesome to produce voluminous records will

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not defeat petitioner’s right of inspection.” (citations and

internal quotation marks omitted)).19

The Trustees also argue that Christopher’s and Myrna’s

requests were not “reasonable” because “open door” access had

previously been granted to them. However, nothing in HRS §

560:7-303 restricts a beneficiary from obtaining access to trust

administration documents because the beneficiary was previously

granted access but did not take advantage of it at that time.

Indeed, the Trustees fail to explain why Christopher’s and

Myrna’s April 2012 requests in the Petition to Compel (filed

consequent to the March 2012 Master’s Report) were rendered

unreasonable because of “open door” access that ended in 2007.

For these reasons, the ICA erred in concluding that

Christopher’s and Myrna’s requests were not “reasonable.” The

plain language of the statute does not support consideration

here of the factors applied by the ICA.

B. Based on the Legislative History of HRS § 560:7-303 and
Established Treatises, “Reasonable” Refers to the Time and
Place at Which a Request Is Made, and Does Not Refer to the
Scope of the Request

The statute’s legislative history and established trust

treatises also do not support the ICA’s conclusion that

Christopher’s and Myrna’s requests for trust documents were not

19
We observe that HRS § 560:7-303(2) does not require trustees to provide
copies of all requested trust administration documents. Trustees may fulfill
their duties by providing a sufficient or adequate opportunity to review and
inspect these requested documents.

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“reasonable.” Rather, these sources indicate that “reasonable”

in HRS § 560:7-303 refers to the time and place at which a

request is made, and is not directed at the scope of the

request.

Aside from a change of gendered terms, the relevant

portions of HRS § 560:7-303 remain unchanged since the statute’s

inception in 1976. See 1976 Haw. Sess. Laws Act 200, § 1 at

466–67 (enacting S.B. 79). Additionally, the 1976 statute is

nearly identical to the 1969 Official Text of the Uniform

Probate Code (“UPC”), with the sole exceptions that parts (2)

and (3) were instead denoted by (b) and (c) in the UPC, and that

the UPC contained the word “relevant” prior to “information” in

part (b). See Uniform Probate Code § 7-303 (1969). In sum, HRS

§ 560:7-303 (2006) is substantially the same as HRS § 560:7-303

(1976) and the 1969 UPC upon which the law was based. Because

of this continuity, the legislative history of HRS § 560:7-303

(1976) is probative of the legislature’s ongoing intent

regarding a trustee’s duty to inform.

That history, including the documents and testimony

considered by the legislature, demonstrates a clear recognition

that trustees have a duty to supply trust information to

requesting beneficiaries. For example, the House Research

Office’s November 7, 1975 Comparison and Analysis of the Uniform

Probate Code, included as part of the 1976 House Testimony

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Folder for S.B. 79, specified, “The UPC imposes on the trustee

the duty to account to beneficiaries rather than the court. In

addition, the trustee must supply the beneficiary with

information concerning the terms and assets of the trust if

requested.” House Research Office, Comparison & Analysis of the

Uniform Probate Code (Nov. 7, 1975) (unpaginated; under the

header for “Sec. 7-303. Duty to Inform and Account to

Beneficiaries”) (emphases added). This House commentary echoes

the careful analysis of the Judicial Council of Hawaii’s 1972

Hawaii Probate Code Revision Project, which was chaired by Chief

Justice William S. Richardson. See William S. Richardson,

“Letter on behalf of the Judicial Council of Hawaii to the Hon.

David C. McClung, President of the Senate,” Feb. 27, 1973

(submitting the Judicial Council’s report to the legislature “in

response to Act 128 of the 1970 Session,” which appropriated

funds “to study and review the probate laws of the State of

Hawaii and to prepare for enactment in Hawaii, with appropriate

conforming amendments, the Uniform Probate Code”); Judicial

Council of Hawaii, Hawaii Probate Code Revision Project, The

Uniform Probate Code (Hawaii) 384 (1972) (“[Section 7-303 of]

[t]he U.P.C. imposes on the trustee the duty to account to

beneficiaries rather than the court. In addition, the trustee

must supply the beneficiary with information concerning the

terms and assets of the trust if requested.” (emphases added)).

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See also Judicial Council of Hawaii, Hawaii Probate Code

Revision Project, at 383 (observing the UPC comment on section

7-303 states that “further information may be obtained by the

beneficiary upon request”).

In sum, neither the UPC commentary, the Judicial Council of

Hawaii’s analysis, nor the House Research Office’s observations

support an interpretation of the phrase, “upon reasonable

request,” as one that limits a beneficiary’s access to only

certain trust documents. Nothing in the legislative history of

S.B. 79 states to the contrary. See, e.g., Conf. Comm. Rep. No.

24-76, in 1976 Senate Journal, at 872 (commenting on section 7-

303 only insofar that part (1) was changed from the initial

draft to “clarify who is entitled to receive notice of

registration”).20

This is in accord with the fundamental tenet that, “[f]or

the reason that only the beneficiary has the right and power to

enforce the trust and to require the trustee to carry out the

trust for the sole benefit of the beneficiary, the trustee’s

denial of the beneficiary’s right to information constitutes a

breach of trust.” Bogert’s on Trusts § 961, at 3–4 (2d rev. ed.
20
Indeed, section 813 of the 2010 Uniform Trust Code, “Duty to Inform and
Report,” which is derived from the 1969 UPC, “allows the beneficiary to
determine what information is relevant to protect the beneficiary’s interest”
by requiring “a trustee [to] promptly respond to a beneficiary’s request for
information related to the administration to the trust,” without any
qualification that the request be “reasonable.” Uniform Trust Code § 813(a)
& cmt. (2010). Instead, a trustee’s “[p]erformance is excused only if
compliance is unreasonable under the circumstances.” Id. (emphasis added).

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1983). Accordingly, so long as documents requested of a trustee

pertain to “information about the assets of the trust and the

particulars relating to the administration,” any limitation on a

beneficiary’s access to trust administration documents imposed

by the phrase,” “upon reasonable request,” is not based on the

type or volume of the documents requested.

Although the UPC and the legislative history behind Act 200

do not expressly define the term, “upon reasonable request,” at

the time of the statute’s implementation, the Restatement

(Second) of Trusts illustrated what constituted a “reasonable

request”:

Duty to Furnish Information
The trustee is under a duty to the beneficiary to give him
upon his request at reasonable times complete and accurate
information as to the nature and amount of the trust
property, and to permit him or a person duly authorized by
him to inspect the subject matter of the trust and the
accounts and vouchers and other documents relating to the
trust.

Restatement (Second) of Trusts § 173 (1959) (emphasis added).

Although “at reasonable times” can be interpreted to modify

either when the request must be made by the beneficiary, or by

when the trustee must give information, commentary in the

Restatement (Third) of Trusts points to the former:

(2) Except as provided in § 74 or as permissibly modified
by the terms of the trust, a trustee also ordinarily has a
duty promptly to respond to the request of any beneficiary
for information concerning the trust and its
administration, and to permit beneficiaries on a reasonable
basis to inspect trust documents, records, and property
holdings.

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Restatement (Third) of Trusts § 82(2) (2007) (emphasis added);

see also Restatement (Third) of Trusts § 82 cmt. a (clarifying

that “on a reasonable basis” refers to a beneficiary’s inquiries

being made at “reasonable hours and intervals”). As such,

whether a beneficiary’s request for trust administration

documents pursuant to HRS § 560:7-303 is “reasonable” depends on

the time and place the request is made.

Bogert’s on Trusts elaborates on the reasonableness of the

time and place of a request:

If the beneficiary asks for relevant information
about the terms of the trust, its present status, past acts
of management, the intent of the trustee as to future
administration, or other incidents of the administration of
the trust, and these requests are made at a reasonable time
and place and not merely vexatiously, it is the duty of the
trustee to give the beneficiary the information which he
has asked.

Bogert’s on Trusts § 961, at 4 (2d rev. ed. 1983) (emphasis

added).

Thus, if a beneficiary’s request for trust administration

documents21 is made at a reasonable time and place and not

vexatiously or at unreasonable intervals, it should be

21
Unless ordered by a court, “trust administration documents” do not include
sensitive personal information about other beneficiaries, such as the
diagnosis of a serious illness, that may be in the possession of trustees.
See Restatement (Third) of Trusts § 82 cmt. f (“When a beneficiary’s request
for information may encompass sensitive, private information acquired by the
trustee about other beneficiaries, the extent of the trustee’s duties may
require a balancing of competing interests. While recognizing the requesting
beneficiary’s ‘need to know’ . . . , a trustee — and ultimately a court — may
need to provide some response that offers a compromise between the
confidentiality or privacy concerns of some and the interest-protection needs
of others.”).

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considered a “reasonable request” for the purposes of HRS §

560:7-303.

The record here shows that the requests were neither

vexatious nor made at unreasonable times. Rather, in multiple

hearings on the issue prior to the issuance of the Master’s

Report, the Probate Court explained that Christopher’s and

Myrna’s requests for documents would be considered after the

filing of the Master’s Report. Although a probate court has the

discretion to decide whether a probate matter is transferred to

the civil trials calendar, or whether to retain the matter and

permit discovery, a probate court’s discretion as to a

beneficiary’s request for trust administration documents under

HRS § 560:7-303 is limited to determining whether the request

falls within the scope of the statute, i.e., was made at a

reasonable time and place and not vexatiously.22

Accordingly, the ICA erred in affirming the Probate Court’s

approval and adoption of the Master’s Report without first

granting Christopher’s and Myrna’s requests to access Trust

administration documents. The ICA too narrowly construed the

scope of HRS § 560:7-303 and inappropriately determined that the

statute was trumped by the presumption of regularity and good
22
The probate court retains broad discretion to consider all the
circumstances of a case, including the volume of documents requested, in
determining whether a request was made vexatiously. As noted in Part IV.A.,
however, the potential burden on trustees due to a large volume of requested
documents, alone, does not render a request unreasonable or vexatious.

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faith typically afforded trustees.23 Rather, pursuant to HRS §

560:7-303, Christopher’s and Myrna’s requests for access to

Trust administration documents that were reviewed by the Master

should have been granted. Any other requests for Trust

documents pursuant to HRS § 560:7-303 by Christopher and Myrna

should be evaluated on remand as to whether they were made at a

reasonable time and place and not merely vexatiously.

V. Conclusion

For the foregoing reasons, we vacate the Probate Court’s

August 2, 2012 Judgment and the ICA’s July 11, 2016 Judgment on

Appeal filed pursuant to its June 2, 2016 Memorandum Opinion as

to the Probate Court’s “Order Denying Beneficiary Christopher

Damon Haig’s Petition to Compel Production of Documents and

Continue Deadline to Respond to Master’s Report, Filed April 18,

2012” and “Order Granting Petition for Approval of 1999, 2000,

2001, 2002 and 2003 Income and Principal Accounts.” The Probate

Court’s August 2, 2012 Judgment and the ICA’s July 11, 2016

Judgment on Appeal are otherwise affirmed. This matter is

23
The court need not reach the issue of spoliation. As Christopher and
Myrna have not yet been granted access to Trust documents to determine if the
Master’s conclusions regarding the loss of trust documents was indeed
unproblematic or harmless to the approval of the accounts, it would be
premature for this court to clarify the law of spoliation at this time.

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remanded to the Probate Court for proceedings consistent with

this opinion.

A. Bernard Bays and Michael /s/ Mark E. Recktenwald
C. Carroll for petitioner
Christopher Damon Haig /s/ Paula A. Nakayama

Rebecca A. Copeland, Peter /s/ Sabrina S. McKenna
Van Name Esser, and Thomas
R. Sylvester for petitioner /s/ Richard W. Pollack
Myrna B. Murdoch
/s/ Michael D. Wilson
J. Thomas Van Winkle, Duane
R. Miyashiro, and Melissa
H. Lambert for respondent
Trustees under the Will and
of the Estate of Samuel M.
Damon

George W. Van Buren for
respondents Brendan Damon
Ethington and John Philip
Damon

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