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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
18-JUN-2020
10:45 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
IN THE MATTER OF
THE ELAINE EMMA SHORT REVOCABLE LIVING TRUST AGREEMENT
DATED JULY 17, 1984, as amended.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; T. No. 15-1-0165)
JUNE 18, 2020
McKENNA, POLLACK, WILSON, JJ., WITH RECKTENWALD, C.J.,
CONCURRING IN PART AND DISSENTING IN PART,
WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY POLLACK, J.
In this case, we consider whether the Intermediate
Court of Appeals (ICA) properly upheld an order and judgment of
the probate court that modified a trust provision regarding the
distribution of trust principal without issuing findings of fact
to explain or support its ruling. We also address whether the
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terms of a trust may override a trustee’s statutory requirement
to provide accounts information to contingent beneficiaries.
Upon review, we conclude that the absence of factual
findings by the probate court did not enable the ICA to
meaningfully review the basis of the probate court order to
modify the trust and that the ICA’s reliance on selective
extrinsic evidence was improper. We further hold that the ICA
erred when it concluded that the terms of a trust could
supersede the trustee’s statutory duty to provide accounts
information to contingent beneficiaries of the trust.
Accordingly, we vacate the ICA’s judgment on appeal and the
probate court’s order and judgment, except as specified below,
and remand the case for further proceedings consistent with this
opinion.
I. BACKGROUND
A. General Overview
Elaine Emma Short (Elaine), who passed away on January
3, 2012, was married to Clarence Short (Clarence), and they had
two sons, David Short (David) and William Short (William).
Elaine’s brother, Leroy Cook, is the father of five children
(collectively, “the Cooks”).1 In a will dated September 4, 1979
1
LeRoy Cook predeceased Elaine and thus is represented in this
suit by his daughter, Kristin Linae Cook Kline.
2
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(“1979 Will”), Elaine named Clarence as trustee of her estate,
with their two sons and First Hawaiian Bank (FHB) as successor
trustees in the event Clarence was unavailable or predeceased
her. Elaine subsequently established a revocable living trust
in 1984 (“initial trust”), as did her husband (“Clarence’s
Trust”). Both trusts were created to provide for the settlor’s
respective spouse, as well as their two sons David and William.
Article V.B.(a) of the initial trust provided that if Elaine was
not survived by Clarence at the time of her death, subtrusts
would be created for David and William, from which the Successor
Trustee could distribute principal and income to her sons as
needed for health, education, and support and maintenance for
each son’s accustomed standard of living.2 Article V.B.(a) also
2
Article V.B. of the initial trust provided as follows:
B. Upon the Settlor’s death, if the Settlor is survived by
any of the Settlor’s descendants, but not by the Settlor’s
spouse CLARENCE RAYMOND SHORT, then at such time the
Successor Trustee shall hold, administer, and distribute
all of the then remaining residuary trust estate, including
accumulated and accrued but undistributed income and any
property received from the Settlor’s probate estate, as
follows:
(a) The Successor Trustee shall divide the aforesaid
trust property into two equal shares. The Successor
Trustee shall hold one of such shares as a separate
trust for the benefit of the Settlor’s son, WILLIAM
SHORT, and the Successor Trustee shall hold the other
of such shares as a separate trust for the Settlor’s
son, DAVID SHORT. The Successor Trustee shall pay
the income and principal of each separate trust to
the Settlor’s son for whom such share was set aside,
in accordance with his needs for health, education,
support and maintenance in his accustomed standard of
(continued . . .)
3
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provided that once each son reached the age of 45, the Successor
Trustee would distribute to that son the remaining trust balance
and terminate his subtrust. Under Article V.B.(b) of the
initial trust, if either son died before Elaine, the property
that would have otherwise funded the subtrust for the deceased
son’s benefit was to be distributed to his issue, per stirpes;
if the son died without issue, the Successor Trustee was to hold
the property for the surviving son. Articles V.C and VIII
provided that if neither Clarence nor any of Elaine’s
descendants survived her, then the trust estate was to be
distributed to Elaine’s heirs-at-law at the time of her death.3
(. . . continued)
living. As each of the Settlor’s said sons reaches
the age of thirty-five (35) years, the Successor
Trustee shall distribute to him one-half (1/2) of the
property remaining in the separate trust set aside
for his benefit. When each of the Settlor’s sons
reaches the age of forty-five (45), the Successor
Trustee shall distribute the balance of the trust
balance remaining in the separate trust set aside for
his benefit, and that trust shall thereupon
terminate.
(b) If either of the Settlor’s said sons shall not be living at the
time when a separate trust otherwise would be established hereunder for
his benefit, the property which otherwise would have funded the
separate trust for his benefit shall be distributed to his issue, per
stirpes; and if he leaves no issue who are then living, such property
shall be held by the Successor Trustee of the separate trust
established for the other of the Settlor’s said sons; and if neither of
the Settlor’s said sons is living at the time when separate trusts
otherwise would be established for them hereunder, all of the aforesaid
trust property shall be distributed to the Settlor’s issue, per
stirpes.
3
Article V.C provided as follows:
(continued . . .)
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On March 10, 1993, Elaine amended several articles of
the initial trust (“Elaine’s Trust”).4 Relevant to this
litigation, Article V.B.(a) was amended to provide the Successor
Trustee with full discretion to withhold distribution of income
to David and William if warranted by the circumstances (Amended
Article V.B.(a)).5 Upon Elaine’s death, the Successor Trustee
(. . . continued)
Upon the settlor’s death, if neither the Settlor’s
spouse CLARENCE RAYMOND SHORT nor any of the
Settlor’s descendants survive the Settlor, then at
such time the Successor Trustee shall dispose of all
of the then remaining residuary trust estate under
Article VIII herein below.
Article VIII provided as follows:
If, at any time, the foregoing provisions do not
provide persons qualified to take the trust estate,
then the trust estate shall be distributed to those
persons who would constitute the heirs-at-law of the
Settlor as then determined under, and in the
proportions then provided by, the laws of the state
of the Settlor’s domicile at the date of the
Settlor’s death relating to descent and distribution
of property, the same in all respects as though the
Settlor’s death had occurred at the time that such
assets became subject to distribution under this
Article.
4
Articles V.C. and VIII were not modified by the 1993 amendments.
5
Amended Article V.B.(a) provides as follows:
(a) The Successor Trustee shall divide the aforesaid trust
property into two equal shares. The Successor Trustee
shall hold one of such shares as a separate trust for the
benefit of the Settlor’s son, WILLIAM SHORT, and the
Successor Trustee shall hold the other of such shares as a
separate trust for the Settlor’s son, DAVID SHORT. The
Successor Trustee shall pay all or portions of the income
of each separate trust to the Settlor’s son for whom such
share was set aside, in accordance with his needs for
health, education, support and maintenance as determined by
the Successor Trustee in its sole discretion, with full
(continued . . .)
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could only distribute income, and not principal, from David and
William’s respective subtrusts as necessary to meet their needs
for “health, education, support, and maintenance,” as determined
by the Successor Trustee in its sole discretion. Also, because
William at the time had a drug-related disability, income
distributions to him were to be restricted to vital necessities
unless he had been drug-free for at least a year. The amended
trust no longer provided for the distribution of principal to
either of Elaine’s sons after her death nor did it provide for
termination of their subtrusts.
On June 8, 1993, William passed away unmarried and
without children. Under the terms of Elaine’s Trust, William’s
interest in the property was to be held by the trustee for David
at Elaine’s death.6 Clarence passed away on April 10, 2010.
(. . . continued)
discretion to withhold any income from time to time if
circumstances so warrant. In the case of William Short who
has a drug-related disability at the present time, the
Successor Trustee shall withhold income for everything but
the vital necessities unless said son is drug-free and has
continued to be for at least one year, the Successor
Trustee to have absolute discretion in making such
determinations from time to time.
6
Should one or both sons not survive Elaine, Amended Article
V.B.(b) of Elaine’s Trust provides the following instructions:
If either of the Settlor’s said sons shall not be living at
the time when a separate trust otherwise would be
established hereunder for his benefit, the property which
otherwise would have funded the separate trust for his
benefit shall be distributed to his issue, per stirpes; and
if he leaves no issue who are then living, such property
(continued . . .)
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Elaine was declared incapacitated in 2005, and she passed away
on January 3, 2012. David has not married and has no children.
B. Probate Court Petition
On August 16, 2015, FHB, as the trustee of Elaine’s
Trust, filed a Petition for Instructions Regarding Distribution
and Termination, and for Modification of Trust (petition) in the
Circuit Court of the First Circuit (probate court) that
requested in relevant part that the probate court (1) instruct
the trustee that David’s subtrust created under Amended Article
V.B.(a) of Elaine’s Trust terminate upon the death of David; (2)
instruct the trustee that discretionary distributions of
principal may be made from David’s subtrust; and (3) modify
Elaine’s Trust to provide for a termination date and the
discretionary distribution of principal, by amending Article
V.B(a);7 and (4) allow payment of FHB’s attorneys’ fees and
(. . . continued)
shall be held by the Successor Trustee of the separate
trust established for the other of the Settlor’s said sons;
and if neither of the Settlor’s said sons is living at the
time when separate trusts otherwise would be established
for them hereunder, all of the aforesaid trust property
shall be distributed to the Settlor’s heirs at law,
determined by the laws of the State of Hawaii in force at
such time.
7
The proposed modifications to Article V.B.(a) of Elaine’s Trust
read as follows:
a) The Successor Trustee shall divide the aforesaid trust
property into two equal shares. The Successor Trustee
shall hold one of such shares as a separate trust for the
benefit of the Settlor’s son, WILLIAM SHORT, and the
(continued . . .)
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costs. In the petition, FHB listed the Cooks as heirs at law
and contingent beneficiaries under Elaine’s Trust.
David filed an affidavit in support of FHB’s petition,
asserting that because he and his mother Elaine had little to no
contact with her brother Leroy, or with any of Leroy’s issue for
many decades prior to Elaine’s death, it was his belief that
Elaine’s intent was to make her husband and sons the “primary
beneficiaries” of her trust.
The Cooks contested the petition by filing a response
and objection to FHB’s petition. The Cooks agreed that David’s
subtrust should terminate at David’s death but opposed FHB’s
proposed modification that would allow the distribution of
principal to David. Elaine’s Trust was not ambiguous as to the
(. . . continued)
Successor Trustee shall hold the other of such shares as a
separate trust for the Settlor’s son, DAVID SHORT. The
Successor Trustee shall pay all or portions of the income
and portions of the principal of each separate trust to the
Settlor’s son for whom such share was set aside, in
accordance with his needs for health, education, support
and maintenance, as determined by the Successor Trustee in
its sole discretion, with full discretion to withhold any
income or principal from time to time if circumstances so
warrant, and each separate trust shall terminate upon the
death of the Settlor’s son for whom such share was set
aside. In the case of William Short who has a drug-related
disability at the present time, the Successor Trustee shall
withhold income for everything but the vital necessities
unless said son is drug-free and has continued to be for at
least one year, the Successor Trustee to have absolute
discretion in making such determinations from time to time.
(Emphasized portions indicate proposed modifications.)
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permitted distribution of the principal, the Cooks contended,
and thus FHB’s attempt to change the language of Elaine’s Trust
should be rejected as improper.
The Cooks also disputed the contents of David’s
affidavit. The Cooks, through the declaration of Susan Kay Cook
Galvin (Susan), stated that Leroy’s relationship with Elaine was
close and that, through Elaine’s numerous visits to Minnesota to
see Leroy and the Cooks over many years, they learned Elaine’s
relationship with David was “strained” in light of concerns
during her lifetime regarding the level of financial support
David expected from her. Susan declared that in 1998 she stayed
with Elaine in a Minneapolis hotel for three days during the
Opera America Convention, and that in 1999 she stayed with
Elaine and Clarence in Hawaiʻi. Susan further stated that after
Leroy died, the Cooks maintained regular phone contact with
Elaine until 2009 or 2010. The Cooks also included several
photographs of themselves with Elaine in activities, two of
which appear to show Elaine present at one of the Cooks’
weddings, while others appear to be group family photos. The
Cooks also submitted a petition for the appointment of a
guardian that showed David’s whereabouts were unknown when
Elaine needed a guardian due to her advanced dementia. Further,
the Cooks argued that the amendment to Article V.B.(a) was not
made in response to Williams’ drug-related disability because
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Elaine did not amend this provision after William’s death that
year. Lastly, the Cooks requested attorneys’ fees from the
principal of Elaine’s Trust, arguing that their involvement in
the matter was necessary to clarify the provisions of Elaine’s
Trust.
In response to the Cooks’ objections, FHB argued that
its petition properly sought clarification of its duties under
Elaine’s Trust. FHB stated that permitting discretionary
distributions of principal to David would be in furtherance of
Elaine’s intent to provide for her sons and any issue they might
have. It was premature for the Cooks to assert their rights as
contingent remainder beneficiaries, FHB contended, because the
Cooks would be “completely divested” if David were to have issue
before his death. While Elaine’s Trust did not expressly
provide for distributions of principal to David, FHB maintained,
it did not expressly prohibit such action and thus Elaine’s
Trust was ambiguous. FHB contended that Hawaiʻi trust law
permits the court to modify a trust document, and that the
proposed amendment was supported by the text of Elaine’s Trust
and extrinsic evidence. FHB also argued against payment of
attorneys’ fees to the Cooks from the principal as a potentially
improper use of trust assets for non-beneficiaries because the
Cooks were contingent beneficiaries. Finally, FHB requested
that its attorneys’ fees be paid from the principal because it
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had raised questions that affected the principal of the trust
estate.
In a supplement to its initial petition, FHB also
responded to a September 16, 2015 letter from the Cooks’ counsel
requesting information under Hawaiʻi Revised Statutes (HRS)
§ 560:7-303(2)&(3).8 In the letter, the Cooks requested that FHB
provide them with the following information: (a) a list of
assets of Elaine’s Trust at the time of Elaine’s death, (b) a
statement of accounts for Elaine’s Trust during 2012-2014, (c) a
statement of income distributed to David during 2012-2015, (d)
the amount of income that David received from Clarence’s Trust
8
HRS § 560:7-303 (2006) provides in relevant part as follows:
The trustee shall keep the beneficiaries of the trust
reasonably informed of the trust and its administration;
provided, however, during the life of the settlor, the
trustee of a revocable inter vivos trust shall not be
required to register the trust, reveal the terms to
beneficiaries, or account to beneficiaries, unless
otherwise directed by the settlor. 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.
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during 2012-2015, and (e) the amount of David’s total income for
2012-2015.
FHB objected to the Cooks’ request for information
regarding David’s income and information as to Clarence’s Trust
because the requested information did not relate to Elaine’s
Trust and was not necessary for the Cooks to protect their
interest. Citing Article XIV of Elaine’s Trust, FHB contended
that only adult beneficiaries then entitled to receive income or
principal of the trust estate were allowed to receive regular
accounts of Elaine’s Trust.9 Since the Cooks were not yet in the
position to receive income from Elaine’s Trust and because
Clarence’s Trust was a separate matter altogether, FHB argued
that requests (d) and (e) set forth in the Cooks’ letter were
unwarranted. FHB requested the probate court give instructions
as to whether the Cooks, as contingent remainder beneficiaries
who could be completely divested of their interest in Elaine’s
Trust if David dies with issue, were entitled to the information
sought in requests (a), (b), and (c).
9
Article XIV of Elaine’s Trust provides in pertinent part as
follows:
The Trustee and all Successor Trustees shall not be
required to give any bond or surety or file any account in
any court, but shall deliver regular accounts to the
Settlor during the Settlor’s lifetime and subsequently to
all adult beneficiaries then entitled to receive income or
principal of the trust estate.
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David filed a response to FHB’s petition and to the
Cooks’ objection to modify Elaine’s Trust. In his response,
David agreed with both FHB and the Cooks as to setting a
proposed termination date for Elaine’s Trust. David further
agreed with FHB that he should receive discretionary
distributions of principal from Elaine’s Trust, stating that
Elaine’s Trust contained ambiguous language that should be read
in his favor as the sole income beneficiary. David argued that
Elaine’s unquestionable intent was to provide for him, William,
and their respective descendants, and he was the only one
living. David disputed the Cooks’ objections, contending that
if the Cooks were truly as close to Elaine as they claimed,
there would be more express language in Elaine’s Trust to
provide for them if he and William left no issue. Instead,
David maintained, Elaine’s Trust merely contains an “Armageddon
clause” referencing “heirs at law,” which does not provide a
sufficient basis for the Cooks to frustrate Elaine’s primary
intent to benefit her sons. Finally, David included a
declaration from Carol Short, Elaine’s sister-in-law through
Clarence, stating that she was in frequent contact with Elaine
and Clarence, she had never heard of the Cooks, Elaine had never
mentioned the Cooks, and she believed Elaine’s intent was to
provide financial support to David after her death.
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The probate court held a hearing on FHB’s petition,
with counsel for FHB, David, and the Cooks present.10 The
minutes of the hearing indicate that the court found “there is
an ambiguity” and would “focus on the settlor’s intent.”11 In
its Order Granting Petition for Instructions Regarding
Distributions and Termination, and for Modification of Trust
(Order), the court granted FHB’s petition, modifying Elaine’s
Trust to provide for discretionary payments of principal to
David and terminating his subtrust under Amended Article V.B.(a)
and (b) at his death. The probate court’s order contained no
findings of fact as to whether Elaine’s Trust contained an
ambiguity regarding the distribution of principal, whether
extrinsic evidence was considered in the court’s determinations,
and if so, the evidence that was considered and the evidentiary
standard used to review the evidence.
The court also concluded FHB was not required to
provide financial information to the Cooks. The court
instructed the parties to provide a termination date for
Elaine’s Trust and ordered that the attorneys’ fees for all
parties involved in the proceedings be paid from the principal
10
The Honorable Derrick H.M. Chan presided.
11
Although the Cooks requested a transcript of the hearing, it was
not included in the record on appeal.
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of Elaine’s Trust. The probate court entered its judgment on
December 16, 2015 (judgment), from which both the Cooks and
David appealed to the ICA.
C. ICA Proceedings
The Cooks asserted that the probate court erred in
modifying Amended Article V.B.(a) of Elaine’s Trust and in
refusing their request for information related to Elaine’s Trust
and David’s finances. David and FHB both filed answering briefs
opposing the Cooks’ contentions. David also filed a cross-
appeal, arguing that the probate court abused its discretion in
allowing the Cooks’ attorneys’ fees and costs to be paid from
the principal of Elaine’s Trust.
In its memorandum opinion, the ICA first addressed
whether the plain language of Amended Article V.B.(a)
unambiguously demonstrated Elaine’s intent to allow
discretionary payments of principal to David.12 The ICA noted
that this provision does not instruct the trustee on principal
distributions and that Elaine’s Trust did not demonstrate
Elaine’s intent to preserve the principal for the Cooks or to
limit David to income solely.
12
The ICA’s memorandum opinion can be found at In re Elaine Emma
Short Revocable Living Tr. Agreement, No. CAAP-XX-XXXXXXX, 2019 WL 2417367
(Haw. App. June 10, 2019) (mem.).
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The ICA determined that “Elaine’s primary intent
appears to be to provide for her children.” By contrast, stated
the ICA, the Cooks’ claim to their interest arises only “through
a default provision.” The ICA surmised that the language
permitting the trustee to withhold income was likely added in
response to William’s drug-related disability. The ICA also
determined that, regardless of Elaine’s primary intent, there
were no provisions in Elaine’s Trust limiting or prohibiting the
trustee’s ability to distribute principal.
Thus, the ICA concluded that an ambiguity arose as to
the distribution of principal under Amended Article V.B.(a), and
it accordingly reviewed extrinsic evidence to aid in its
construction of this provision. The ICA noted that Carol
Short’s declaration stated that she was frequently in contact
with Elaine, Elaine never mentioned the Cooks, and she had “no
doubt” Elaine would want to provide complete financial support
to David. Referencing David’s affidavit, the ICA stated that
David also did not believe that Elaine had contact with the
Cooks, and that Elaine “intended for her children and their
issue to be the primary beneficiaries of [Elaine’s] Trust.”
Further, the ICA concluded that the 1979 Will likely reflected
Elaine’s intent to provide the principal to David, to the
exclusion of the Cooks, because the 1979 Will made no mention of
“heirs at law.” The ICA then considered the Cooks’ statements,
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the numerous photographs, as well as Susan’s declaration, but
the ICA found this evidence insufficient to show that Elaine
intended the Cooks to receive the principal, stating, “we are
unpersuaded.” Finally, the ICA dismissed the Cooks’ assertion
that Elaine did not have a close relationship with David,
opining that the fact that David could not be found when Elaine
needed a guardian appointed merely shows that “the identity and
whereabouts of Elaine’s adult children [was] unknown.” This
circumstance, the ICA stated, “does not, in our view, establish
that Elaine intended now to provide for her heirs-at-law.”
The ICA thus held that the extrinsic evidence
supported the conclusion that Elaine intended first and foremost
to provide for her sons and their respective issue.
Accordingly, the ICA concluded that the probate court had not
erred in modifying Amended Article V.B.(a) to allow
discretionary distribution of the principal to David.
The ICA also rejected the Cooks’ argument that HRS
§ 560:7-303 superseded Article XIV of Elaine’s Trust, which
provides that FHB need only give accounts information to
beneficiaries then entitled to principal and income. The ICA
held that a trust can alter how much information is given to a
beneficiary and may limit accounts information, even if that
information is required by statute, so long as the statute does
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not prohibit such alteration.13 HRS § 560:7-303 does not
prohibit FHB from providing accounts information to current
beneficiaries only, the ICA concluded, allowing Elaine’s Trust
to exclude contingent beneficiaries like the Cooks. Therefore,
the ICA determined that the probate court did not err when it
rejected the Cooks’ contention that they were statutorily
entitled to (1) a listing of Elaine’s Trust assets at the time
of Elaine’s death in 2012; (2) a statement of accounts for
Elaine’s Trust in the years 2012, 2013, and 2014; (3) a
statement of the income distributions made to David from
Elaine’s Trust for 2012, 2013, and 2014; and (4) financial
information relating to Clarence’s Trust.
Lastly, the ICA found that the probate court abused
its discretion when it awarded the Cooks attorneys’ fees from
Elaine’s Trust’s principal. The ICA thus affirmed the probate
court’s Order and judgment in all respects except as to the
grant of the Cooks’ attorneys’ fees and costs, which was
reversed.
In their application for writ of certiorari, the Cooks
contend that the ICA gravely erred in the following: (1) after
finding an ambiguity in the trust, weighing conflicting evidence
13
The ICA cited Restatement (Third) of Trusts § 82 cmt. a(2) and
§ 83 cmt. d (Am. Law Inst. 2007) for this proposition.
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to determine Elaine’s intent and ignoring other evidence to
resolve the ambiguity without holding a hearing as required for
contested matters under Hawaiʻi Probate Rules (HPR) Rules 19 and
20;14 (2) affirming the probate court’s decision to deny the
Cooks any financial information regarding Elaine’s Trust despite
the trustee’s statutory duty to produce this information;15 and
(3) determining that the probate court abused its discretion in
awarding attorneys’ fees and costs to the Cooks.
II. STANDARDS OF REVIEW
A. Construction of a Trust
“The construction of a trust is a question of law
which this court reviews de novo.” In re Medeiros Testamentary
Tr. and Life Ins. Tr., 105 Hawaiʻi 284, 288, 96 P.3d 1098, 1102
(2004).
B. Statutory Interpretation
Statutory interpretation is a question of law
reviewable de novo. Stout v. Bd. of Trs. of the Emps. Ret.
Sys., 140 Hawaiʻi 177, 185, 398 P.3d 766, 774 (2017).
14
The Cooks do not challenge the ICA’s determination that an
ambiguity exists as to the distribution of principal under Amended Article
V.B.(a).
15
The Cooks in their certiorari application do not challenge the
ICA’s holding that they were not entitled to information regarding Clarence’s
Trust, and this issue is thus not addressed.
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III. DISCUSSION
A. The ICA Erred by Weighing the Credibility of the Extrinsic
Evidence on Appeal Instead of Remanding the Case to the Probate
Court.
1. The Lack of Findings Requires Remanding the Case to the
Probate Court.
The probate court’s written Order in this case allowed
FHB to modify Elaine’s Trust to provide for the distribution of
principal to David. The Order, however, contained no findings
of fact as to whether Amended Article V.B.(a) was ambiguous.
According to the minutes of the hearing on FHB’s petition, the
probate court orally stated that it found an ambiguity and
“focus[ed] on Settlor’s intent.” But it is unclear on what
basis the probate court found an ambiguity, or if such ambiguity
formed the basis for the court’s determination.16 Even assuming
the probate court found an ambiguity, it is also unclear whether
the probate court considered Elaine’s intent to be clear from
16
The probate court’s Order contains no findings of fact or
conclusions of law regarding ambiguity. While the ICA’s memorandum opinion
addressed the specific issue raised by the Cooks of whether Amended Article
V.B.(a) was ambiguous, a probate court may modify a trust in other
situations, for example, when unforeseen or emergency circumstances require
modification of a clause. See Restatement (Third) of Trusts § 66 (Am. Law
Inst. 2003) (permitting modification of an administrative or distributive
provision of a trust because of unanticipated circumstances or in order to
further the purposes of the trust); see also Hawaiian Tr. Co. v. Breault, 42
Haw. 268, 271 (Haw. Terr. 1958) (permitting deviation from the terms of the
trust when emergencies occur or unusual circumstances arise). In fact, FHB
argued in its petition and its answering brief to the ICA that Amended
Article V.B.(a) was ambiguous and that there were unforeseen circumstances
necessitating a change. Thus, it is unclear what considerations formed the
basis of the probate court’s decision to grant FHB’s petition to modify
Elaine’s Trust.
20
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other provisions in Elaine’s Trust or whether the court relied
on extrinsic evidence in determining Elaine’s intent. If the
probate court did rely on extrinsic evidence, it is unclear what
evidence it found persuasive, and there is also no indication as
to what evidentiary standard it used in weighing the evidence.
In short, the probate court did not articulate the factual basis
of its ruling.
The ICA, after concluding that Amended Article V.B.(a)
was ambiguous, proceeded to evaluate extrinsic evidence offered
by the parties to the probate court. It determined that Carol
Short’s Declaration, David’s Affidavit, and the 1979 Will were
credible and persuasive evidence of Elaine’s intent, stating
that it was “unpersuaded” by the Declaration of Susan, the
numerous photographs, and the petition for appointment of a
guardian. Thus, based on the evidence it considered to be
credible or deserving of weight, the ICA held that the probate
court did not err in granting FHB’s petition.
However, when the lower court has failed to issue the
requisite findings of fact to enable meaningful appellate
review, it is not the function of the appellate court to conduct
its own evidentiary analysis. See Goo v. Arakawa, 132 Hawaiʻi
304, 317, 321 P.3d 655, 668 (2014) (holding that a fact-
intensive inquiry is best handled by a trial court, not an
appellate court, especially when the record is incomplete or
21
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non-existent); Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S.
379, 383-84 (2008) (holding that the Court of Appeals should
remand to the District Court instead of engaging in its own
evidentiary analysis). After concluding that Amended Article
V.B.(a) was ambiguous, the ICA should not have conducted its own
analysis of the evidence by weighing its credibility. Instead,
the ICA should have remanded the case to the probate court so
that it could identify the facts it found to be in support of
the modification. See Graham v. Wash. Univ., 58 Haw. 370, 375,
569 P.2d 896, 900 (1977) (remanding a trust dispute to the trial
court for consideration of extrinsic evidence to determine the
settlor’s intent after concluding that the extrinsic evidence
was improperly excluded by the trial court).17 The ICA’s failure
to remand the case to the probate court contravened the basic
and well-settled principle that fact-finding should be left to a
fact-finder. Pullman-Standard v. Swint, 456 U.S. 273, 291-92
(1982) (“[F]actfinding is the basic responsibility of district
courts, rather than appellate courts, and . . . the Court of
Appeals should not have resolved in the first instance this
17
FHB argues that Graham is inapposite because it was not
adjudicated under the court rules that govern probate court proceedings,
i.e., HPR Rules 19 and 20. However, the principle that the trial court
should consider, in the first instance, extrinsic evidence when resolving an
ambiguity applies without regard to the procedural rules governing the
proceeding. Indeed, the Graham court’s holding was based on the trial
court’s erroneous application of the parole evidence rule and did not
reference any rules of procedure.
22
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factual dispute which had not been considered by the District
Court.” (alterations in original)); see also Gussin v. Gussin,
73 Haw. 470, 489, 836 P.2d 484, 494 (1992) (holding that remand
was required because the family court did not make any findings
as to donative intent or any other element bearing on whether a
legal gift had been made); Herrmann v. Herrmann, 138 Hawaiʻi 144,
155-56, 378 P.3d 860, 871-72 (2016) (holding that ICA erred in
not remanding for further fact-finding where the family court
did not make a finding as to prejudice regarding an estoppel
argument).
Furthermore, “[t]his court has repeatedly stated that
cases will be remanded when the factual basis of the lower
court’s ruling cannot be determined from the record.” State v.
Visintin, 143 Hawai‘i 143, 157, 426 P.3d 367, 381 (2018)
(internal quotation marks omitted). This rule has been applied
whenever the trial court fails to make findings of fact that are
necessary for the court’s ruling. State v. Hutch, 75 Haw. 307,
331, 861 P.2d 11, 23 (1993) (“Because findings of fact are
imperative for an adequate judicial review of a lower court’s
conclusions of law, we have held that cases will be remanded
when the factual basis of the lower court’s ruling cannot be
determined from the record.” (alterations and internal quotation
marks omitted) (quoting State v. Anderson, 67 Haw. 513, 514, 693
P.2d 1029, 1030 (1985))); Anderson, 67 Haw. at 514, 693 P.2d at
23
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1030 (remanding after determining that the lower court granted
the motion to suppress without having made any findings of
fact). Accordingly, when a trial court has failed to issue
findings of fact and the appellate court is unable to discern
the factual basis of the lower court’s ruling, we have held that
the case should be remanded to permit the lower court or agency
to make the requisite findings. Visintin, 143 Hawai‘i at 157,
426 P.3d at 381; see also Gordon v. Gordon, 135 Hawaiʻi 340, 351,
350 P.3d 1008, 1019 (2015) (remanding to the trial court when
the record was so deficient as to prohibit “meaningful appellate
review”).
The Chief Justice’s Concurring and Dissenting Opinion
(minority) contends that our opinion “ignores” the well-settled
rule that, “Where the [lower] court’s decision is correct, its
conclusion will not be disturbed on the ground that it gave the
wrong reason for its ruling.” Minority at 9 (alteration in
original) (quoting Poe v. Hawaiʻi Labor Rels. Bd., 87 Hawai‘i
191, 197, 953 P.2d 569, 575 (1998)). However, in this case the
probate court gave no reason for its ruling, and it is not clear
that this rule is intended to apply when the lower court decides
a case without providing any reasoning at all. The Poe opinion
cited directly to two cases in support of this rule. The first
case was Reyes v. Kuboyama, in which this court vacated the
lower court’s ruling granting summary judgment and recognized
24
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that the defendant owed a duty to plaintiff not to sell liquor
to a minor in violation of the law. 76 Hawai‘i 137, 139, 870
P.2d 1281, 1283 (1994). Poe also cited to Enos v. Pacific
Transfer & Warehouse, Inc., in which this court stated that
in order to facilitate a meaningful and more efficient
appellate review, an order imposing sanctions should set
forth findings that describe, with reasonable specificity,
the perceived misconduct (such as harassment or bad faith
conduct), as well as the appropriate sanctioning
authority[.]
79 Hawai‘i 452, 459, 903 P.2d 1273, 1280 (1995) (emphasis added).
We do not interpret Poe as permitting an appellate court to
scour the evidentiary record of a case for any factual basis in
the record to support a trial court’s decision. Such a rule
would require the appellate court to affirm a lower court’s
decision despite overwhelming evidence in the record to the
contrary or affirm a ruling that resulted from the trial court’s
misapprehension of the determinative facts or the applicable
law. Moreover, it would also allow the exact situation that
occurred in this case: permitting an appellate court to affirm a
trial court’s decision based on credibility determinations that
were never made by a trial court.18
18
The minority contends that we should affirm the probate court
based upon any ground in the record because the court found that Elaine
intended for David to receive distributions of principal. Minority at 8.
The probate court made no such finding. We disagree that the record
impliedly establishes the court made this finding as there are no findings
whatsoever as to Elaine’s intent or with regard to the extrinsic evidence.
Additionally, it is unclear whether the probate court’s ruling was based on a
finding that Elaine intended for David to receive distributions of the
(continued . . .)
25
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Without findings of fact to review, the ICA was unable
to determine if the probate court’s modification was based on
clearly erroneous findings. The absence of findings therefore
precluded the ICA from being able to conduct appropriate
appellate review. And this court is similarly not able to
meaningfully review the probate court’s Order in this case. The
ICA thus erred in affirming the probate court’s Order and
judgment instead of remanding the case to the probate court with
instructions to render findings of fact.19
(. . . continued)
principal or whether it found there were unforeseen or emergency
circumstances that required a modification of Elaine’s Trust so that its
purposes would not be frustrated. See supra note 16. The minutes of the
court hearing could have referred to a focus on Elaine’s intent as to the
purpose or purposes of the trust or her intent for David to receive
distributions of the principal. Since the record is susceptible to multiple
possible bases for the probate court’s ruling, and since the court did not
identify the facts upon which it relied, we are unable to affirm the probate
court’s ruling, let alone on a separate basis. Cf. Reyes, 76 Hawai‘i at 140,
870 P.2d at 1284. The minority contends that the purpose of Elaine’s Trust
and an intention for David to receive principal distributions are “one and
the same.” Minority at 8-9 n.5. However, this assumes that the purpose of
the trust had to coincide with Elaine’s intent as to whether David would
receive a distribution of principal, which may or may not have been the case.
19
The minority argues that the lack of a transcript of the hearing
on the petition, as required by Hawaiʻi Rules of Appellate Procedure (HRAP)
Rule 10(b)(3), is more significant to this appeal than the lack of findings.
Minority at 2-3. HRAP Rule 10(b)(3) (2012) provides that “[i]f the appellant
intends to urge on appeal that a finding or conclusion is unsupported by the
evidence or is contrary to the evidence, the appellant shall include in the
record a transcript of all evidence relevant to such finding or conclusion.”
(Emphases added.) The minutes indicate that only the arguments of counsel
were presented at the hearing on the petition and do not show that any
evidence in the form of testimony, documents, or tangible objects was
adduced; under the circumstances of this case, the inclusion of the hearing
transcript would not aid us in our resolution of this case.
26
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2. The Probate Rules Do Not Supersede the Settled Principle
That An Appellate Court Will Remand a Case to the Lower
Court When It Has Not Entered Findings Sufficient to Permit
Meaningful Review of the Decision.
The minority contends that our well-established case
law requiring that a case be remanded when the lower court has
failed to issue requisite findings of fact does not apply to the
probate court. Minority at 7. Specifically, the minority
argues that the probate rules permit the probate court to
dispose of contested cases without entering written findings.
Minority at 7-8. Accordingly, the minority contends that if the
probate court declines to make findings, as it is permitted to
do under the probate rules, the appellate court is empowered to
examine and weigh the extrinsic evidence in the record as the
ICA did in this case. Minority at 8.
First, as discussed, it is not the function of the
appellate court to conduct its own evidentiary analysis in a
case on appeal. See Goo v. Arakawa, 132 Hawaiʻi 304, 317, 321
P.3d 655, 668 (2014). Determining contested facts is for the
trial courts, not courts of appeal. Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 383-84 (2008). Whether the probate
court rules expressly require findings or whether the probate
27
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court declines to make findings does not redefine an appellate
court’s reviewing authority.20
The minority’s analysis is also negated by the
structure of the Hawaii Probate rules. HPR Rule 20 (2010)
provides that when a case is contested the probate court must,
through a written order, either assign the case to the circuit
court or retain it.21 HPR Rule 20(a).22 If the probate court
assigns the case to the circuit court, “[t]he Hawaiʻi Rules of
20
The minority appears to contend that the Cooks have waived any
challenge to the ICA conducting its own analysis of the extrinsic evidence
and weighing its credibility. Minority at 3-5. However, the Cooks
challenged the ICA’s improper weighing of the extrinsic evidence at the
earliest possible time that such a challenge could have been raised--in their
application for a writ of certiorari--because the probate court had not
referenced any extrinsic evidence in its Order. Thus, the nature of such
reliance, if any, could not have previously been discerned. Accordingly, the
issue is not waived.
The minority also suggests that the ICA’s consideration and
weighing of extrinsic evidence was appropriate because “[p]etitioners invited
it to do so.” Minority at 10. It is incorrect to assert that the Cooks
“invited” the ICA to weigh the extrinsic evidence. The Cooks specifically
argued that consideration of the extrinsic evidence would be improper under
Hawai‘i law, but, in the event that the ICA was inclined to consider it, the
Cooks argued that the extrinsic evidence supported their contention that
Elaine did not intend for David to receive distributions of principal.
Moreover, a party’s argument as to the credibility or weight of extrinsic
evidence simply does not negate the well-settled rule that an appellate court
should remand a case to the lower court when the absence of findings prevents
meaningful appellate review. Gussin, 73 Haw. at 489, 836 P.2d at 494.
21
The Cooks filed an objection to FHB’s petition challenging FHB’s
contention that Elaine’s Trust was ambiguous as to the distribution of the
principal or, in the alternative, arguing that the ambiguity should be
resolved in their favor. The opposed petition therefore became a contested
matter. HPR Rule 19 (“A contested matter is any one in which an objection
has been filed.”).
22
HPR Rule 20(a) provides as follows:
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.
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Civil Procedure [(HRCP)] and the Rules of the Circuit Courts
will apply to all contested matters assigned to the civil trials
calendar.” HPR Rule 20(c).23 Crucially, HRCP Rule 52 (2000)
provides that “[i]n all actions tried upon the facts without a
jury . . . the court shall find the facts specially.” HRCP Rule
52(a) (emphasis added).24 Thus, under HPR Rule 20(c), the
circuit court would make findings of fact on the contested
23
HPR Rule 20(c) provides as follows:
The Hawaiʻi Rules of Civil Procedure and the Rules of the
Circuit Courts will apply to all contested matters assigned
to the civil trials calendar. However, no right to jury
trial shall be created by assignment to the civil trials
calendar where such a right does not exist in the
underlying proceeding. Unless otherwise ordered by the
court, when a matter is assigned to the civil trials
calendar, then for all procedural purposes, the party
objecting to the petition shall be considered the
plaintiff, the objection is to be treated as a complaint,
and the complaint shall be deemed to have been filed on the
date of the assignment to the civil trials calendar.
24
HRCP Rule 52 provides in pertinent part as follows:
(a) Effect. In all actions tried upon the facts without a
jury or with an advisory jury, the court shall find the
facts specially and state separately its conclusions of law
thereon, and judgment shall be entered pursuant to Rule 58;
and in granting or refusing interlocutory injunctions the
court shall similarly set forth the findings of fact and
conclusions of law which constitute the grounds of its
action. Requests for findings are not necessary for
purposes of review. Findings of fact shall not be set
aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the
credibility of the witnesses. The findings of a master, to
the extent that the court adopts them, shall be considered
as the findings of the court. If an opinion or memorandum
of decision is filed, it will be sufficient if the findings
of fact and conclusions of law appear therein. Findings of
fact and conclusions of law are unnecessary on decisions of
motions under Rules 12 or 56 or any other motion except as
provided in subdivisions (b) and (c) of this rule.
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matter under HRCP Rule 52. Alternatively, if the probate court
retains the case, the probate court “in the order of assignment
may, at the request of the parties, designate and order that any
one or more of the Hawaiʻi Rules of Civil Procedure and/or the
Rules of the Circuit Courts shall be applicable in such matter.”
HPR Rule 20(d).25 Although the probate court is not obligated to
adopt any and all rules that the parties request, it must
exercise its discretion to do so “with regard to what is right
and equitable under the circumstances and the law.” Booker v.
Midpac Lumber Co., 65 Haw. 166, 172, 649 P.2d 376, 380 (1982)
(quoting Langnes v. Green, 282 U.S. 531, 541 (1931)).
Thus, in order for a contested case to be resolved
without findings of fact, the parties would have to agree to
allow the probate court to resolve their contested matter
without explaining its reasons for its decision, or
alternatively, the probate court would have to refuse a party’s
request to adopt a rule requiring the court to make findings in
its ruling. In a contested case, particularly where the outcome
may depend on factual determinations about the credibility of
25
HPR Rule 20(d) provides as follows:
Whenever the court retains jurisdiction of a contested
matter as a probate proceeding, the court in the order of
assignment may, at the request of the parties, designate
and order that any one or more of the Hawai‘i Rules of Civil
Procedure and/or the Rules of the Circuit Courts shall be
applicable in such matter.
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extrinsic evidence, such a refusal would likely be inequitable
and an abuse of discretion. Additionally, a contested case that
is adjudicated without findings of fact may occur when the
probate rules are not followed.
Here the case was clearly contested, yet the probate
court did not issue an order retaining the case in contravention
of HPR Rule 20(a). Thus, the parties were not provided an
opportunity under HPR Rule 20(d) to request that the probate
court adopt HRCP Rule 52 and render findings of fact at the time
an order of retention should have been issued. Additionally,
the record does not contain any other order indicating that the
probate court intended to decide the case without findings, nor
does the record contain a waiver from any of the parties of
their right to request findings as a result of the probate
court’s retention of the case.26
26
The minority contends that the “parties must request that
specific rules apply before the probate court issues a retention order.”
Minority at 7 n.4. The minority inverts the process. As the commentary to
HPR Rule 20(a) explains, “By requiring a written order of assignment . . . a
clear record is created, and the court then has the opportunity to decide
what procedures will be used if the contested matter is retained. (See [HPR]
Rule [20](d). . . .” HPR Rule 20(a) cmt. (emphasis added).
Similarly, this court has observed in a probate proceeding where
no retention order was entered that “[t]he prerequisites of HPR Rule 20(d)
apparently were not satisfied in this case in that there is no order of
assignment in which the court ‘may, at the request of the parties designate
and order that any one or more of the Hawai‘i Rules of Civil Procedure and/or
the Rules of the Circuit Courts shall be applicable in such matter.’” In re
Estate of Campbell, 106 Hawaii 453, 460 n.16, 106 P.3d 1096, 1103 n.16 (2005)
(emphasis added) (citing HPR Rule 20(d)). As in Campbell, because an order
of retention was never issued by the probate court in this case, the parties
were not properly afforded the opportunity to request the procedures that
(continued . . .)
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This court has repeatedly emphasized the critical
importance of factual findings and the many reasons they should
be made when possible. First, findings of fact “facilitate a
meaningful and more efficient appellate review.” Bank of Hawaii
v. Kunimoto, 91 Hawai‘i 372, 390, 984 P.2d 1198, 1216 (1999).
Adequate findings are crucial to meaningful appellate review
because it allows the appellate court to ascertain the trial
court’s reasoning and determine whether it was consistent with
applicable law. Enos, 79 Hawai‘i at 459, 903 P.2d at 1280
(stating that an order imposing sanctions should describe with
reasonable specificity the perceived misconduct and the
appropriate sanctioning authority to facilitate meaningful and
efficient appellate review).
Second, findings “assure both the litigants and the
court that the decision . . . was the result of reasoned
consideration.” Trs. of Estate of Bishop v. Au, No. SCWC-16-
0000235, at 28, 2020 WL 1150157, at *9–10 (Haw. Mar. 10, 2020)
(citing Enos, 79 Hawai‘i at 459, 903 P.2d at 1280). By
specifically articulating its findings, the trial court is
encouraged to take care in determining the facts in dispute.
(. . . continued)
would be employed by the court, as specifically provided by HPR Rule 20(d),
and no such procedures were ever established in a written order.
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Richards v. Kailua Auto Mach. Serv., 10 Haw. App. 613, 620-21,
880 P.2d 1233, 1237 (1994) (“[T]he requirement that findings of
fact be made is intended to evoke care on the part of the trial
judge in ascertaining the facts.” (citing 9 C. Wright & A.
Miller, Federal Practice and Procedure: Civil § 2571, at 679-80
(1971))).
Third, without findings of fact, the appellate court
is compelled to review the entire record to identify clear
error, expending valuable time and effort that could easily be
avoided through the making of findings, which is a
proportionally less burdensome task on the lower court.
Similarly, the lack of findings of fact impairs a litigant’s
ability to meaningfully advocate on appeal because the litigant
must speculate as to the basis for the trial court’s rulings.
See Mackler v. Bd. of Educ., 108 A.2d 854, 858 (N.J. 1954)
(stating that there are practical reasons for making findings of
fact, including, to help parties plan their cases for rehearing
and for judicial review). Findings of fact relieve both the
parties and the appellate courts from the unnecessary burden of
exhaustively combing the record in an attempt to find any fact
that could hypothetically justify the lower court’s decision.
Based on these reasons, we have held that findings are
necessary or strongly encouraged in a variety of proceedings,
even when they are not required by rule or statute. Enos, 79
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Hawai‘i at 459, 903 P.2d at 1280 (stating that a court should
make findings when ordering sanctions); Au, No. SCWC-XX-XXXXXXX,
at 29 (“[W]e hold that a court imposing a vexatious litigant
order under HRS chapter 634J is required to make findings[.]”).
This court has also required findings for orders granting
sanctions for discovery violations or failing to review a court
rule, and we have made findings a near requirement when a trial
court grants an involuntary dismissal of a complaint with
prejudice. Fujimoto v. Au, 95 Hawai‘i 116, 153, 19 P.3d 699, 736
(2001) (holding that the circuit court’s sanctioning of the
plaintiffs for failure to review a court rule before filing the
complaint was an abuse of discretion “[a]bsent a particularized
finding of bad faith”); Kawamata Farms, Inc. v. United Agri
Prods., 86 Hawai‘i 214, 258, 948 P.2d 1055, 1099 (1997)
(affirming the circuit court’s award of sanctions for abusive
litigation practices because the sanction was adequately
supported by an express finding of bad faith); In re Blaisdell,
125 Hawai‘i 44, 49, 252 P.3d 63, 68 (2011) (stating that before
dismissing a case with prejudice, “the careful exercise of
judicial discretion requires that a [trial] court consider less
severe sanctions and explain, where not obvious, their
inadequacy for promoting the interests of justice.” (alteration
in original) (emphasis omitted) (quoting Schilling v. Walworth
Cty. Park & Planning Comm’n, 805 F.2d 272, 275 (7th Cir.
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1986))). Nonetheless, the minority asserts that probate courts
are uniquely empowered to dispose of contested matters without
articulating the factual basis of their dispositions. Minority
at 7-8.
The minority relies on a combination of the canons of
interpretation known as in pari materia and expressio unius est
exclusio alterius to conclude that the absence of an express
requirement that findings be made in the probate rules and its
presence in the HRCP and the Hawai‘i Family Court Rules evidences
a specific intent to except probate courts from any requirement
that findings of fact be made in contested matters. Minority at
7-8. First, the structure of the probate court rules, in
automatically implementing the HRCP when a contested case is
assigned to the circuit court and allowing the parties to
request that findings be made when a probate court retains the
contested case, essentially renders it unnecessary for the
probate rules to have an express mandate that the probate court
render findings of fact in contested cases. As stated, a
probate court would likely abuse its discretion in not rendering
findings when requested by a party in a contested case,
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particularly when the disposition turns on the credibility of
extrinsic evidence, which is an inherently factual inquiry.27
Additionally, the canon of in pari materia is only
applicable if the statutes or rules being compared relate to the
same subject matter, which is not the case here. Int’l Sav. &
Loan Ass’n, Ltd. v. Wiig, 82 Hawai‘i 197, 200, 921 P.2d 117, 120
(1996) (stating that statutes concerning the same subject matter
should be construed with reference to each other); State v.
Mata, 71 Haw. 319, 330, 789 P.2d 1122, 1128 (1990) (“HRS Chapter
281 regulates the sale of liquor and liquor establishments. HRS
Chapter 291 regulates traffic violations. The chapters serve
different purposes and are not in pari materia.”). Here, the
probate rules, family court rules, and the rules of civil
procedure do not relate to the same subject matter.
Further, this court has stated that these canons serve
“only as an aid” to interpretation and “[t]he inclusion of a
specific matter in a statute implies the exclusion of another
‘only where in the natural association of ideas the contrast
between a specific subject matter which is expressed and one
which is not mentioned leads to an inference that the latter was
27
The minority incorrectly asserts that we conclude that the
structure of the probate rules “always” requires findings of facts, making a
specific rule unnecessary in this case. Minority at 7 n.4. We do not make
this conclusion. Instead, we conclude that the failure of the probate court
to make findings in a dispositive ruling may require an appellate court to
remand the case for the rendering of findings to permit a meaningful review
of the probate court’s decision.
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not intended to be included within the statute.’” Wiig, 82
Hawai‘i at 201, 921 P.2d at 121 (emphases added) (quoting 82
C.J.S. Statutes § 333, at 670 (1953)). Here, the differences
between the probate rules, the rules of civil procedure, and the
family court rules do not naturally lead to the inference that
probate courts are specially excepted from having to make
findings of fact in contested matters. This is particularly
true because when the probate court assigns the case to the
civil trial calendar, the HRCP apply, and when the probate court
retains the case, the parties are given the right to request
findings, thus essentially providing the parties with the means
to obtain the underlying basis for the court’s ruling pursuant
to HPR Rule 20(a), (c), and (d) and HRCP Rule 52. This further
militates against any inference of a specific intent to
specially except the probate courts from making findings in
contested cases that depend on factual determinations, as any
such intent is negated by the structure of the rules themselves.
Hence, when acting in accordance with the Hawaiʻi Probate Rules,
a probate court should make findings of fact in a contested case
such as this, even though there is not an explicit requirement
to do so, except when the court’s refusal may be justified as a
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sound exercise of its discretion or when the parties agree to a
resolution without an articulation of its basis.28
Thus, while the probate rules do not specifically
require findings in all contested cases retained by the probate
court, their omission in a dispositional ruling may require an
appellate court to remand the case for the making of findings to
enable the appellate court to meaningfully review the probate
court’s decision. In this case, the complete absence of
findings by the probate court precludes us from being able to
determine which facts the court relied upon and which underlay
the court’s modification of Elaine’s Trust. Without this
information, we are unable to determine if the probate court’s
modification was based on clearly erroneous findings or whether
alternative grounds would support affirmance.29 See Visintin,
143 Hawai‘i at 157, 426 P.3d at 381; Wong v. Cayetano, 111
28
The minority contends that the instant case is an example of when
a probate court is permitted to dispose of a contested matter without making
findings. Minority at 7 n.4. However, the probate court in this case did
not comply with the probate rules when it failed to issue an order retaining
the case and, because there was no order of assignment, failed to
specifically afford the parties the ability to request that the Hawai‘i Rules
of Civil Procedure and/or the Rules of the Circuit Courts be applicable in
the contested matter. This failure does not provide a legal basis to excuse
the probate court from having to make findings of fact that are sufficient to
enable the appellate court to meaningfully review the probate court’s
decision.
29
The minority also contends that the issue of the probate court’s
failure to make findings was “not preserved for review.” Minority at 5. We
do not consider whether the probate court’s decision not to enter findings
was erroneous. Contra Minority at 5. We hold only that under the
circumstances of this case, the lack of findings precludes us from conducting
meaningful appellate review.
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Hawai‘i 462, 479, 143 P.3d 1, 18 (2006). Accordingly, we are
unable to conduct an appropriate appellate review and must
remand the case to the probate court.30
B. The Cooks Are Entitled to Accounts Information from the
Trustee of Elaine’s Trust.
When construing a testamentary trust, this court is
guided by principles relating to the interpretation of trusts as
well as those relating to the interpretation of wills. Tr.
Created Under the Will of Damon (Trust of Damon I), 76 Hawaiʻi
120, 124, 869 P.2d 1339, 1343 (1994). “A fundamental rule when
construing trusts is that the intention of the settlor as
expressed in a trust instrument shall prevail unless
inconsistent with some positive rule of law.” In re Lock
Revocable Living Tr. (In re Lock), 109 Hawaiʻi 146, 151-52, 123
P.3d 1241, 1246-47 (2005) (quoting Trust of Damon I, 76 Hawaiʻi
at 124, 869 P.2d at 1343); In re Robinson Tr., 110 Hawaiʻi 181,
184, 130 P.3d 1046, 1049 (2006). Positive law “typically
consists of enacted law--the codes, statutes, and regulations
30
Because the probate court judge who initially presided over this
case is unavailable to enter findings of fact, we vacate that portion of the
ICA’s judgment affirming the probate court’s Order modifying Elaine’s Trust
to distribute principal to David and remand the case to the probate court for
further proceedings consistent with this opinion. Cf. Hana Ranch, Inc. v.
Kanakaole, 66 Haw. 643, 649-650, 672 P.2d 550, 554 (1983) (noting that under
HRCP Rule 63, “a successor trial judge cannot enter findings of fact and
conclusions of law in a case which was tried before his predecessor.”).
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that are applied and enforced in courts.” Positive Law, Black’s
Law Dictionary (11th ed. 2019).31
Here, Article XIV of Elaine’s Trust provides that the
trustee “shall deliver regular accounts to . . . all adult
beneficiaries then entitled to receive income or principal of
the trust estate.” (emphasis added). Elaine’s intention as
expressed in Article XIV was to limit who received “regular
accounts” to “then entitled” beneficiaries. See In re Lock, 109
Hawaiʻi at 151-52, 123 P.3d at 1246-47. Under Elaine’s Trust,
David is the only beneficiary “then entitled” to receive regular
accounts. The Cooks, by their own admission, are contingent
beneficiary remainders. See In re Estate of Campbell, 46 Haw.
475, 483 n.6, 382 P.2d 920, 943 n.6 (1963) (“In this opinion the
term ‘contingent beneficiaries’ is used to describe those who
are not presently income takers but who may become income takers
and may also share in the distribution of the corpus upon the
termination of the trust[.]”). Thus, under the terms of
Elaine’s Trust, the Cooks are not now entitled to accounts
information. This provision prevails unless there is positive
law that overrides Elaine’s intent. In re Lock, 109 Hawaiʻi at
151-52, 123 P.3d at 1246-47.
31
For the purposes of this opinion, “positive rule of law” is
considered to be synonymous with “positive law,” as defined by Black’s Law
Dictionary.
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When construing statutes, “the fundamental starting
point for statutory interpretation is the language of the
statute itself.” Stout v. Bd. of Trs. of the Emps. Ret. Sys.,
140 Hawaiʻi 177, 185, 398 P.3d 766, 774 (2017) (quoting Citizens
Against Reckless Dev. v. Zoning Bd. of Appeals, 114 Hawaiʻi 184,
193, 159 P.3d 143, 152 (2007)). HRS § 560:7-303 requires a
trustee to “keep the beneficiaries of the trust reasonably
informed of the trust and its administration.” Hawaiʻi law is
clear that a trust beneficiary is any person with a “future
interest, vested or contingent.” HRS § 560:1-201 (2006)
(emphasis added).32 This court has previously held that HRS
§ 560:7-303 imposes three separate duties on the trustee. Trust
Created Under the Will of Damon (Trust of Damon II), 140 Hawaiʻi
56, 65, 398 P.3d 645, 654 (2017). “The first is an affirmative
duty to ‘keep the beneficiaries . . . reasonably informed of the
trust and its administration.’ The second and third duties set
forth in parts (2) and (3), respectively, spring to life ‘upon
reasonable request’ of a beneficiary.”33 Id. at 65-66, 398 P.3d
at 654-55 (footnote omitted). Once information is requested,
32
HRS § 560:1-201 provides in pertinent part as follows:
“Beneficiary”, as it relates to a trust beneficiary,
includes a person who has any present or future interest,
vested or contingent, and also includes the owner of an
interest by assignment or other transfer[.]
33
See note 8, supra, for HRS § 560:7-303 subsections (2) and (3).
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the trustee, in lieu of providing copies of documents, has
discretion to provide a “sufficient or adequate opportunity to
review and inspect these requested documents.” Id. at 66 n.19,
398 P.3d at 655 n.19. We have noted that “the probate court
retains broad discretion to consider all the circumstances of a
case,” and, unless ordered by a court, a trustee need not
include “sensitive personal information about other
beneficiaries.” Id. at 68 nn.21, 22, 398 P.3d at 657 nn.21, 22.
Thus, this court has recognized that HRS § 560:7-303 imposes a
duty upon a trustee to provide trust account information to
beneficiaries within reasonable limitations. Following the
failure of FHB to provide trust account information regarding
Elaine’s Trust, the Cooks, as contingent remainder beneficiaries
under HRS § 560:7-303, were entitled upon request to receive
such information within reasonable limits determined by the
probate court.
Instead of evaluating the reasonableness of the
request, the probate court in its Order determined that the
statute imposed no duty on FHB to provide trust and accounts
information:
The Trustee is instructed that the Trustee is not required
to provide financial information relating to the Trust, the
Subtrust, and the Clarence Raymond Short Revocable Living
Trust Agreement dated July 17, 1984, as amended, to the
contingent remainder beneficiaries of the Trust and the
Subtrust.
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Without referencing this court’s opinion in Trust of Damon II,
the ICA affirmed the probate court, citing Restatement (Third)
of Trusts § 82 cmts. a(2) and (d) (Am. Law Inst. 2007),34 and it
held that a trust may alter the amount of information a trustee
must give to the beneficiary, even if a statute requires the
providing of that information, so long as the statute does not
prohibit such an alteration. In effect, under the ICA’s
reading, HRS § 560:7-303 can be overridden by the language of
the trust document, notwithstanding the mandatory language of
subsections (2) and (3) because the statute does not prohibit
modification of the amount of information a trustee must give to
the beneficiaries. While it is true that nothing in the
language of HRS § 560:7-303 prohibits modifying the terms of a
trust regarding whether a trustee must provide account
34
Commentary to Restatement (Third) of Trusts § 82 provides in
relevant part:
(a)(2) . . . . The terms of a trust may alter the amount of
information a trustee must give to the beneficiaries under
this Section and also the circumstances and frequency with
which, and persons to whom, it must be given.
. . . .
(d) . . . . Disclosure is fundamental to sound
administration of the trust, and to both the trustee’s
performance and the beneficiaries’ monitoring of associated
fiduciary obligations. Therefore, the trustee's duty to
provide the type of information described in this Comment
is subject to modification only by clear language in the
terms of the trust and within limits described in
Comment a(2).
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information to the beneficiaries, there is similarly nothing in
the statute’s language that suggests providing such information
is optional or non-mandatory. See Territory v. Fasi, 40 Haw.
478, 480 (Haw. Terr. 1954) (finding that the use of the verb
“shall” generally indicates a mandatory provision); Kinkaid v.
Bd. of Review, 106 Hawaiʻi 318, 323, 104 P.3d 905, 910 (2004)
(reading “entitled” to be similar to “entitlement” which is a
“[r]ight to benefits . . . which may not be abridged”
(alterations in original)); see also HRS § 560:7-303. “In any
event, a trust provision relieving the trustee of the duty to
keep formal accounts does not abrogate the statutory duty to
account to the beneficiaries in the probate court.”35 In re
Childress Tr., 486 N.W.2d 141, 145 (Mich. Ct. App. 1992) (citing
Raak v. Raak, 428 N.W.2d 778 (Mich. Ct. App. 1988)); see also
Hollenbeck v. Hanna, 802 S.W.2d 412, 414-15 (Tex. App. 1991)
(rejecting an attempt by the settlor to eliminate accounts to
any trust beneficiaries in the trust document and remanding to
35
The ICA cited In re McGuire Marital Trust, 660 N.W.2d 308 (Wis.
Ct. App. 2003), for the proposition that contingent remainder beneficiaries
were not entitled to trust and accounts information when the trust only
required accounts information be given to then-entitled beneficiaries.
However, McGuire is inapposite. The McGuire court specifically noted that
“Wisconsin law is silent as to whether a settlor of an inter vivos trust can
give one class of beneficiaries sole authority to receive and approve the
trust accounting.” 660 N.W.2d at 314. Hawaiʻi law is not silent regarding
such matters. HRS § 560:7-703 clearly establishes that a beneficiary,
including a contingent beneficiary, is entitled to request trust and accounts
information. HRS § 560:7-303(2), (3).
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lower court to determine the extent of accounts owed under the
statute).
FHB and David also assert, and the ICA agreed, that
HRS § 560:7-201(b) permits a settlor to amend a trust document
to limit who can receive accounts information. See generally
HRS § 560:7-201 (2006).36 FHB argues that this statute grants a
36
HRS § 560:7-201 provides as follows:
(a) The court has jurisdiction of proceedings initiated by
trustees and interested persons concerning the internal
affairs of trusts. Proceedings which may be maintained
under this section are those concerning the administration
and distribution of trusts, the declaration of rights and
the determination of other matters involving trustees and
beneficiaries of trusts. These include, but are not
limited to, proceedings to:
(1) Appoint or remove a trustee;
(2) Review trustees’ fees and to review and settle
interim or final accounts;
(3) Ascertain beneficiaries, to determine any
question arising in the administration or
distribution of any trust including questions of
construction of trust instruments, to instruct
trustees, and to determine the existence or
nonexistence of any immunity, power, privilege, duty
or right; and
(4) Release registration of a trust.
(b) Neither registration of a trust nor a proceeding under
this section result in continuing supervisory proceedings.
The management and distribution of a trust estate,
submission of accounts and reports to beneficiaries,
payment of trustees’ fees and other obligations of a trust,
acceptance and change of trusteeship, and other aspects of
the administration of a trust shall proceed expeditiously
consistent with the terms of the trust, free of judicial
intervention and without order, approval or other action of
any court, subject to the jurisdiction of the court as
invoked by interested persons or as otherwise exercised
pursuant to law.
(continued . . .)
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settlor broad discretion to control the administration of the
trust and in effect codifies Restatement (Third) of Trusts § 82
cmt. a(2). This assertion is unmoored from the actual text of
the statute. HRS § 560:7-201(b) is a jurisdictional statute
that allows a trust to be administered without court
supervision, while subsection (a) establishes the type of
proceedings that an interested person can initiate before the
court. HRS § 560:7-201(a). This statute cannot be read as a
broad grant for a settlor to ignore positive law. In re Lock,
109 Hawaiʻi at 151-52, 123 P.3d at 1246-47.37 And even assuming
that HRS § 560:7-201(b) and HRS § 560:7-303 could be read as
conflicting, a specific statute (HRS § 560:7-303) trumps a
general statute (HRS § 560:7-201(b)). Richardson v. City & Cty.
of Honolulu, 76 Hawaiʻi 46, 55, 868 P.2d 1193, 1202 (1994).
Thus, HRS § 560:7-303 is positive law that cannot be
modified by the language of a trust. See In re Lock, 109 Hawaiʻi
at 151-52, 123 P.3d at 1246-47. Accordingly, the limitation on
(. . . continued)
(Emphases added.)
37
FHB cites Camara v. Agsalud, 67 Haw. 212, 215-16, 685 P.2d 794,
797 (1984), and Barnett v. State, 91 Hawaiʻi 20, 31, 979 P.2d 1046, 1057
(1999), for the proposition that courts must give effect to all parts of a
statute and that laws on the same subject matter should be read with
reference to one another. However, HRS § 560:7-201(b) merely allows a trust
to be administered without court interference consistent with the settlor’s
intent. It does not permit the settlor to contravene Hawaiʻi law that is part
of the same HRS chapter.
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the dissemination of trust and accounts information to “then
entitled beneficiaries” in Article XIV of Elaine’s Trust is an
impermissible infringement on HRS § 560:7-303.
The Cooks are currently contingent beneficiaries
because their interest is contingent on David passing without
issue. While their interest may be divested if a greater claim
arises, this does not mean that the Cooks are not currently
reasonably entitled to accounts information regarding Elaine’s
Trust as provided by HRS § 560:1-201. The exact scope of what
trust and accounts information regarding Elaine’s Trust they are
entitled to is a determination to be made by the probate court
based on a reasonable request standard. See HRS § 560:7-201
(“[S]ubmission of accounts and reports to beneficiaries . . .
[is] subject to the jurisdiction of the court as invoked by
interested persons or as otherwise exercised pursuant to law.”);
see also Trust of Damon II, 140 Hawaiʻi at 68, 398 P.3d at 657
(citing HRS § 560:7-303 to find a reasonable request standard).
Thus, the ICA erred in holding that the terms of
Elaine’s Trust can supersede HRS § 560:7-303 to limit which
beneficiaries are entitled to trust and accounts information
from the trustee. Further, the probate court also erred in
concluding that FHB is not required to provide financial
information regarding Elaine’s Trust to the contingent
beneficiaries.
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IV. CONCLUSION
Accordingly, the ICA’s August 1, 2019 Judgment on
Appeal is vacated, except as to its affirmance of the denial of
account information to the Cooks from Clarence’s Trust. The
probate court’s judgment and Order are also vacated except as to
its ruling regarding providing account information from
Clarence’s trust. The case is remanded to the probate court for
further proceedings consistent with this opinion.
Thomas E. Bush /s/ Sabrina S. McKenna
for petitioners
/s/ Richard W. Pollack
Rosemarie S.J. Sam, Edmund K.
Saffery, Deirdre Marie-Iha /s/ Michael D. Wilson
(Lynda L. Arakawa with them on
the brief)
for respondent
First Hawaiian Bank
Rhonda L. Griswold, Calvert G.
Chipchase, Summer G. Shelverton
(Stacy K. Takekawa with them on
the brief)
for respondent David Short
48