DISSENTING OPINION OF
FONG, CIRCUIT JUDGEI dissent.
I must respectfully disagree with the majority of this court with respect to the rationale and results it reached on the forfeiture issue. I believe that this court improperly handled the forfeiture issue when it summarily held that: (1) the actions of the Appellants, Clyde, Michael, and Robert Ikuta were in the nature of construing the will; and (2) the lower court was empowered to appoint an additional trustee as the circumstances were such that the appointment of such additional trustee was conducive to the better administration of the trust. Although there are cases which hold that: (1) a search for the true meaning of a will is not an attack upon it; and (2) the probate *249court is empowered to appoint additional trustees when the circumstances are such that the appointment of such additional trustees would be conducive to the better administration of the trust, this was not the case at bar.
The Appellants’ actions constituted a “contest” of the will. The word “contest” is a term of art and means any legal proceeding which is designed to result in the thwarting of the testator’s wishes expressed in his will. This can be found by interpreting a “no-contest” clause in light of the facts and circumstances of each case and the purpose that the testator sought to attain. Estate of Friedman, 100 Cal. App.3d 810, 161 Cal. Rptr. 311 (1979); Estate of Kazian v. Security Pacific National Bank, 59 Cal. App.3d 797, 130 Cal. Rptr. 908 (1976). See generally 80 Am. Jur.2d, Wills § 1572; 49 A.L.R.2d 223, § 11.
The “no-contest” clause (often termed an “in terrorem” clause) in Dr. Shunji K. Ikuta’s will is brief, but is of great scope. It provides:
If any beneficiary under this will in any manner directly or indirectly, contests or attacks this will, or any of its provisions, any share or interest in my estate given to that contesting beneficiary under this will is revoked and shall be disposed of in the same manner provided herein as if that contesting beneficiary had predeceased me without heirs. (Emphasis added)
From the plain language used, it is clear that the clause is directed to any beneficiary under the will and that the prohibition is not only limited to “contest”, but also to “attack”; hence the scope is broader. In addition, not only are “direct” contests or attacks prohibited, but also “indirect” ones. The use of the disjunctive “or” and the phrase “in any manner” clearly reflects the testator’s proscriptions against all methods of “contest or attack”.
The general rule sustaining the validity of no- contest provisions in wills for forfeiture of the share of a beneficiary who initiates legal proceedings for the purpose of thwarting the testator’s wishes expressed in his will has been upheld by numerous American courts and is beyond dispute. In re Markham’s Estate, 46 Cal. App.2d 307, 115 P.2d 866 (1941); Rudd v. Searles, 262 Mass. 490, 160 N.E. 882 (1928); Sckiffer v. Brenton, 247 Mich. 512, 226 N.W. 253 (1929); Bradford v. Bradford, 19 Ohio St. 546 (1869); In re Friend’s Estate, 209 Pa. 442, 58 A. 853 (1904); Boettcher v. Busse, 45 Wash.2d 579, 277 P.2d 368 (1954). See generally 80 Am. Jur.2d, Wills § 1570; 157 A.L.R. 596. However, the extent to which the courts go in applying such *250no-contest clauses resulting in forfeiture is in a present state of judicial split. See Comments, No-Contest Will Clauses, 24 U. CHI. L. REV. 762 (1957).
An examination of the decisions of the appellate courts of other jurisdictions reveals that the majority of them hold that the no-contest clause is valid and enforceable, subject to the exception that it will not be held effecdve as to the interest of a beneficiary who litigates the validity of the testator’s will if it appears that the contest was instituted by such beneficiary in good faith and with probable cause to believe that the will was invalid. Hartz’ Estate v. Cade, 247 Minn. 362, 77 N.W.2d 169 (1956). See generally 125 A.L.R. 1135. The policy considerations most often advanced in support of the majority view is that, if a will is actually invalid, a strict and literal interpretation of such a no-contest clause might prevent the establishment of its invalidity and thus thwart the course of justice. The Supreme Court of Iowa best summarized these policy considerations in In re Cocklin’s Estate, 236 Iowa 98, 112, 17 N.W.2d 129, 135 (1945), where it stated:
[I]f a will were executed as the result of fraud, would not a legatee, who knew of the fraud but stood silently by fearing to risk loss of his legacy and accepted the fruits of the fraud, be morally a party to it? Also, a will executed by an incompetent is legally no more his will than if it were forged and a will secured by undue influence is as repugnant to the law as one secured by fraud. Public policy forbids that one should be tempted to let such wills prevail. The administration of justice should not be frustrated in such a manner.
The Restatement of Property follows a modified version of the majority view. That version takes on a wholly substantive analytic view regarding the no-contest provision. RESTATEMENT OF PROPERTY § 428 (1944) provides:
RESTRAINTS ON WILL CONTESTS
(1) An otherwise effective condition precedent, special limitation, condition subsequent or executory limitation which is designed to prevent the acquisition or retention of a devised interest in and or in things other than land in the event of a contest of the will in which such devise is made is valid, except as stated in Subsection (2).
(2) A provision such as is described in Subsection (1) is invalid to the extent that it applies to a contest of the will based *251upon a claim of forgery or upon a claim of subsequent revocation by a later will or codicil, provided there was probable cause for the making of such contest. (Emphasis added)
The reasoning underlying the position taken by the Restatement of Property is set forth in Comment a. RESTATEMENT OF PROPERTY § 428, Comment a (1944) provides:
Rationale. A will is normally contested on some one or more of six grounds, namely, lack of testamentary capacity, fraud, undue influence, improper execution, forgery, or subsequent revocation by a later will or codicil. In order to avoid the danger to his attempted dispositions presented by a possible will contest, the testator may endeavor to restrain his devisees from undertaking such a challenge. A restraint against contest also serves purposes other than preserving the particular dispositions of the testator against attempted overthrow by a disappointed heir, seeking to gain an unintended enrichment at the expense of the other beneficiaries. It tends to lessen the wastage of the estate in litigation. It lessens the chance of increasing family animosities by besmirching the reputation of the testator when he is no longer alive to defend himself. It discourages the contesting of wills as a means of coercing the other beneficiaries into the making of a settlement. Suits brought for this purpose are most easily premised upon issues which involve uncertain states of fact, a situation normally existing in claims of fraud, undue influence and lack of testamentary capacity. By discouraging these types of contests, the maintenance of such coercive operations is discouraged. Hence the balance of social policy is normally in favor of the validity of the restraint. The person affected by the restraint always retains the right to litigate, and if in such litigation it is established that the proffered document was not the will of the deceased, the clause and the will both fall. If he litigates unsuccessfully and then seeks to claim under the very will that he opposed, it is not unfair that he should suffer the penalty imposed by the testator for such conduct.
When, however, the contest is based upon the claim of a revocation by later will or codicil, there is a public interest in having all the documents believed to represent a decedent’s disposition of his property presented to the court. One knowing of such an instrument has the moral, if not the legal duty, of *252presenting the instrument for consideration. It would be in contravention of social policy to place a deterrent upon such action, implicit in a risk of loss of a devise made to the person having the knowledge. Provided such person proceeds with “probable cause” ... he should not be deprived of his devise by the contest clause. Similarly there is a public interest in the discovery of the commisr sion of the crime of forgery. A claim of forgery or of subsequent revocation by a later will or codicil is usually based upon evidence far more definite in character than the shadowy lines of demarcation involved in mental capacity, undue influence or fraud. There is thus less likelihood that such a claim will be employed as a means of coercing a settlement. Nor do such contests normally involve the reputation of the testator. For these reasons, which are not applicable to any of the other common bases for the contest of a will, the balance of social policy is against full validity and the exceptions stated in Subsection (2) result. (Emphasis added)
The minority view on the other hand is that the no-contest clause is valid and enforceable, and that the interest is forfeited by any beneficiary who litigates the validity of the will. Hartz’ Estate v. Cade, supra. See generally 125 A.L.R. 1135. The policy considerations most often advanced in support of the minority view which gives full force and effect to no-contest provisions without regard to any good faith and probable cause which may be possessed by the beneficiary who instituted the litigation, are that: the public is not interested in whether the testator’s heir or his legatee receives the property; such provision prevents needless litigation and suppresses undesirable family dissensions and difficulties, and the paramount purpose is to carry out the intentions of the testator. In re Hite’s Estate, 155 Cal. 436, 101 P.443 (1909). See generally 67 A.L.R. 57.
I must acknowledge that this is a clear case of first impression in Hawaii.1 However, this fact is of no consequence because Appel*253lants’ actions clearly should have resulted in a forfeiture of their interests in Dr. Ikuta’s will irrespective of whether this court applied the majority or minority rule. Under both the majority or minority rules, Appellants’ actions of initiating legal proceedings with respect to Dr. Ikuta’s will were clearly against the expressed wishes of the testator. Thus, under the minority rule, irrespective of the Appellants’justifications, their actions should have clearly resulted in the forfeiture of their interests. In fact, the same result is reached under the majority rule as the Appellants are totally unable to demonstrate that their actions were founded on good faith and probable cause. In fact, Appellants’ actions are totally outside of the exceptions for good faith and probable cause as recognized by those jurisdictions following the majority rule. Those exceptions include the commencement of an action for the construction of the will, determination of the mental capacity of the testator, undue influence on the testator, determination as to the existence of fraud, and determination as to whether the will had been altered. See RESTATEMENT OF PROPERTY § 428, Comment a (1944); see Comments, No-Contest Will Clauses, supra; 80 Am. Jur.2d, Wills, § 1572. It is unclear from a review of the opinion of the majority of this court as to whether they were applying the majority or minority rule. Now, for the sake of argument, I will proceed to review the facts and circumstances of this case under the law most favorable to the Appellants, that law being that of the majority view. This review shall serve to illuminate the fact that the Appellants’ actions clearly have resulted in a forfeiture of their interests in Dr. Ikuta’s will.
I.
The facts and circumstances in this case reveal that the Appellants, in pressing the claim of Chiyoko L. Ikuta to the Wailupe property in the probate proceedings, as well as in Civil No. 36635, asserting full title to the Wailupe property in their mother by their collateral suit in Civil No. 36635 and in the probate court were devoid of good faith and probable cause. The most compelling evidence of the Appellants’ bad faith and lack of probable cause on their part can be found in their active participation in Civil No. 36635 and their active hostile position in the probate proceedings below and in presently urging that all of the Wailupe property pass *254to their mother, Chiyoko L. Ikuta, by virtue of a purported joint tenancy. If their contentions be successful, it would result in a complete termination of their beneficial interest under the trust in the Wailupe property. Each would lose a 1/8 beneficial interest in said property since the property would go in total to Chiyoko L. Ikuta rather than passing through the will into the trust created for all four sons of the testator. It cannot also be presently argued that the sons were looking out for their mother in this instance by instituting a separate suit and pressing their mother’s claim in the probate proceedings. In the face of the no-contest provision, Clyde, Michael and Robert Ikuta must have known that they were in jeopardy of the no-contest provision of the will. Had they been serious in their benevolence to their mother, in insuring that their 3/8 interest in Wailupe be added to her 1/2 interest, they could have transferred their interest, whatever it be, to her, giving her a total of 7/8.
Moreover, their participation in Civil No. 36635 in pressing the claim of Chiyoko were unnecessary since she was already a party sui juris, able to adequately press her own claim without her three sons’ intervention. In addition, the petition of Bishop Trust for instructions regarding the property would have been enough for a ruling of the court without any active participation by Appellants. The only logical conclusion to be reached from the attacks of Clyde, Michael and Robert Ikuta is that such self-defeating actions were based on animosity toward Mary T. and Paul Ikuta and aimed at defeating the wishes of the testator, their father, Dr. Shunji Ikuta. From the foregoing analysis, it cannot be urged that their actions were in the nature of construing the will as urged in the majority opinion.2
II.
The facts and circumstances of this case reveal that the opposition of Clyde, Michael, and Robert Ikuta to the appointment of Mary T. Ikuta as trustee to the testamentary trust created under the will of Dr. Shunji K. Ikuta was initiated in bad faith and without probable cause in direct contravention of the no-contest provision of the will.
*255The Appellants’ position in opposition to the appointment of Mary T. Ikuta as trustee clearly lacked probable cause. There is nothing in the record to indicate that Mary T. Ikuta could not adequately and fairly perform her duties. In fact, Bishop Trust Company, Limited, which was subsequently appointed as co-trustee of the trust, in its Memorandum of Facts, filed on October 10, 1975 stated: .
The will of the decedent in this matter specifically provides for the appointment of Mary T. Ikuta as trustee of the trust to be created for the properties located in Hawaii. Unless there is a compelling cause against not carrying out such intent, this Court is bound to name Mary T. Ikuta as trustee. Any opposition to such appointment is not a proper issue in a probate proceeding. Estate of Campbell, 33 Haw. 799 (1936). (Emphasis added)
Further, if the Appellants were concerned with Mary T. Ikuta as a trustee, they would be entitled to an accounting and they could bring an action at a later date to remove her.
It should be remembered that the record below clearly indicated that Dr. Ikuta was fully cognizant of the provision and consequences of naming Mary as the sole trustee of the Hawaii properties. During the deposition testimony at the probate court below of Robert M. Takasugi, the attorney who drafted the provision, the following was indicated:
1. That the doctor was deeply concerned for his youngest son Paul and created the trust to protect him against his other sons “ganging up” on him.
2. That Dr. Ikuta3 had himself drafted a prior ancillary will in crude language in which he had appointed National Mortgage and Finance Company of Honolulu as trustee.
3. That in requesting Mr. Takasugi to change his will, the testator specifically instructed that National Mortgage and Finance Company be deleted and Mary T. Ikuta be named sole trustee because “he had full faith and trust that she would take care of Paul.”
In the construction of a will this court has repeatedly indicated *256that the testator’s intent is of paramount consideration. Estate of Weill, 48 Haw. 553, 406 P.2d 718 (1965); Hawaiian Trust Co. v. Faria, 43 Haw. 391 (1959); Peters v. Vannatta, 41 Haw. 252 (1955). In light of the clear intent of the testator, Dr. Ikuta, to have Mary T. Ikuta solely appointed as trustee, the actions of the Appellants to have Bishop Trust appointed as co-trustee were clearly in bad faith. This is because given the facts and circumstances of this case, it can only be reasonably concluded that the Appellants’ actions were based on their animosity toward Paul and Mary T. Ikuta. Their actions were precisely the type of legal proceedings that the testator wanted to avoid through the no-contest provision, and as such, the Appellants’ interests should be forfeited.
Moreover, even if this court does not agree with the forfeiture arguments hereinabove indicated, the probate court’s decision regarding the appointment of a co-trustee was in error and should be reversed.
The probate court clearly erred in appointing Bishop Trust as co-trustee of the trust created by the decedent’s will. While it is recognized that courts may appoint additional trustees under certain circumstances, and not merely to fill vacancies by appointment, the record herein does not justify the probate court’s conduct. It must be remembered that Bishop Trust did not seek the appointment. In fact, it urged the contrary, namely, that Mary T. Ikuta be the sole trustee. Mary T. Ikuta herself also protested the appointment. The appointment was made by the probate court without any of the requisite findings to support or justify the additional appointment. The record is devoid of any findings that the sole trustee, Mary T. Ikuta, was unable to perform her functions, or that the work was too great for her to handle.
It is a general proposition of law that a probate court will not appoint an additional trustee where such additional services are not required, particularly when such additional appointment is in conflict with the intent of the testator. 59 A.L.R.3d 1129; 151 Á.L.R. 1308. This proposition has been summarized by the authors of an A.L.R. article which states that:
Speaking generally, it may be said that where a certain number of trustees are appointed by a testator to administer a trust created by him, but less than all of them qualify and perform the duties of the trust, the court has power to appoint a *257cotrustee or cotrustees to act with those who have qualified, where, in the judgment of the court, the filling of the vacancy will be beneficial to the trust, and it does not appear that such appointment would be in conflict with the intent of the testator or with the statutes. Otherwise, the court will not make such an appointment. (Emphasis added) Id at 1309.
The court’s power to appoint additional trustees under its discretionary power is limited to situations where the additional trustee’s services are appropriately required as in the common case of where a trustee had failed to be qualified, or had resigned, or died. Such was not the case herein. In the light of the clearly expressed intent of the testator to have Mary T. Ikuta act as sole trustee, there were no facts in this instance requiring any change or enlargement of the number of trustees from said intent. As such, the probate court’s action was improper and should be set aside.
I would reverse.
Subsequent to the initiation of these proceedings, Hawaii adopted the Uniform Probate Code which, like the Restatement of Property, follows a modified version of the majority view. HRS § 560:3-905 (1976) provides:
Penalty clause for contest. A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings. (Emphasis added)
Even if so construed, the clear broad proscriptions in this instance require a contrary result than that reached by the probate court.
It must be remembered that the testator was not only a doctor of medicine but also had a law degree.