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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
08-SEP-2025
12:37 PM
Dkt. 23 OP
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; CASE NO. 1TR151000165)
SEPTEMBER 8, 2025
RECKTENWALD, C.J., MCKENNA, EDDINS, GINOZA, AND DEVENS, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
This case arises from a request for attorneys’ fees
relating to a petition for instructions regarding the
distribution of principal from a trust. Contingent remainder
beneficiaries contested the distributions. We overturned the
probate court’s initial grant of the petition for instructions
because the probate court did not enter an order required under *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Rule 20(a) of the Hawaiʻi Probate Rules (HPR). 1 On remand, the
probate court again did not enter an HPR Rule 20(a) order and on
subsequent appeal the Intermediate Court of Appeals (ICA) again
remanded.
The contingent remainder beneficiaries seek review of
the probate court’s denial of their motion for attorneys’ fees,
which the ICA affirmed as independent of the probate court’s
failure to enter the HPR Rule 20(a) order. We hold that the
proper test for determining whether a probate court may award
trust litigants attorneys’ fees is whether their appearance
assisted the court in resolving the dispute before it. A
decision on the merits is necessary before determining if an
award of attorneys’ fees is proper. Because the ICA vacated the
circuit court’s decision on the merits in this case, its
affirmance of the probate court’s denial of fees was premature.
1 HPR Rule 20 provides in relevant part:
(a) Assignment. 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.
(d) Procedures in Retained Contested Matters. 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 Hawaiʻi Rules of Civil Procedure
and/or the Rules of the Circuit Courts shall be applicable
in such matter.
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Accordingly, we vacate the ICA’s judgment affirming the probate
court’s denial of the motion for attorneys’ fees and remand the
case to the probate court.
II. BACKGROUND
The facts and much of the procedural history are laid
out in In re Elaine Emma Short Revocable Living Trust Agreement
Dated July 17, 1984, as Amended (Short Trust II), 147 Hawaiʻi
456, 465 P.3d 903 (2020). Elaine Emma Short (Elaine) was
married to Clarence Short (Clarence) and they had two sons,
David Short (David) and William Short (William). Id. at 459,
465 P.3d at 906. Elaine’s brother, Leroy Cook, had five
children (collectively, “the Cooks”). Id. In 1984, Elaine
established a revocable living trust (“initial trust”), as did
Clarence (“Clarence’s trust”), for the purpose of providing for
each other, as well as their two sons. Id. Elaine named
Clarence as the trustee of her estate, with David, William, and
First Hawaiian Bank (FHB) as successor trustees. Id.
Article V.B. of the initial trust provided that, if
Elaine was not survived by her spouse, subtrusts would be
created for her sons from which the successor trustee could
distribute principal and income to David and William as needed.
Id. at 459-60 n.2, 465 P.3d at 906-07 n.2. On March 10, 1993,
Elaine amended the trust, including Article V.B.(a), “to provide
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the Successor Trustee with full discretion to withhold
distribution of income to David and William if warranted by the
circumstances[.]” Id. at 460, 465 P.3d at 907. The amended
trust provided only for the distribution of income, and not
principal, from the subtrusts to meet the sons’ needs for
“health, education, support, and maintenance,” as determined by
the Successor Trustee. Id. Additionally, the amended trust
failed to provide for termination of the sons’ subtrusts. Id.
William passed away, unmarried and without children,
on June 8, 1993, and Clarence passed away on April 10, 2010,
both predeceasing Elaine. Id. Elaine became incapacitated in
2005 and passed away on January 3, 2012. Id. David is
unmarried and has no children. Id.
A. Initial Proceedings 2
On August 12, 2015, trustee First Hawaiian Bank (FHB)
filed a petition to modify Elaine’s trust. FHB, through its
petition, sought to:
(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); and (4) allow
payment of FHB’s attorneys’ fees and costs. In the
2 The Honorable Judge Derrick H.M. Chan presiding.
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petition, FHB listed the Cooks as heirs at law and
contingent beneficiaries under Elaine’s Trust.
Id. at 461, 465 P.3d at 908 (footnote omitted).
In the 2015 probate proceeding, the Cooks contested
the petition. While agreeing that David’s subtrust should
terminate at David’s death, the Cooks opposed FHB’s proposed
modification allowing the distribution of principal to David.
Id. In addition, the Cooks argued that “Elaine’s Trust was not
ambiguous as to the permitted distribution of the principal
. . . and thus FHB’s attempt to change the language of Elaine’s
Trust should be rejected as improper.” Id. Also, the Cooks
sought reimbursement for their attorneys’ fees. Id.
FHB responded, arguing that “its petition properly
sought clarification of its duties under Elaine’s Trust” because
“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.” Id. at 462, 465 P.3d at
909. Further, FHB argued the trust was ambiguous because, while
it did not explicitly authorize distributions of principal, it
also “did not expressly prohibit such action” either. Id.
Addressing the question of attorneys’ fees, FHB asserted that
“payment of attorneys’ fees to the Cooks from the principal
[w]as a potentially improper use of trust assets for
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non-beneficiaries because the Cooks were contingent
beneficiaries.” Id.
David responded, agreeing with FHB and the Cooks “as
to setting a proposed termination date for Elaine’s Trust” but
siding with FHB over the Cooks “that [David] should receive
discretionary distributions of principal from Elaine’s Trust[.]”
Id. David reasoned that “Elaine’s Trust merely contains an
‘Armageddon clause’ referencing ‘heirs at law,’[ 3] which does not
provide a sufficient basis for the Cooks to frustrate Elaine’s
primary intent to benefit her sons.” Id. at 463, 465 P.3d at
910.
After a hearing on the matter, the probate court
entered an order “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.”
Id. The probate court also concluded that the Cooks were not
entitled to financial information from FHB. Id. Finally, the
probate court “ordered that the attorneys’ fees for all parties
3 An “Armageddon clause” is a trust provision that disposes of the trust corpus “in the (presumably unlikely) event that all of the settlor’s descendants or other individual beneficiaries should fail to survive to the end of the trust term.” Benjamin H. Pruett, Tales from the Dark Side: Drafting Issues from the Fiduciary Perspective, 2011 ABATAX-CLE 1022087, 2011 WL 5827897 (Oct. 27, 2011).
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involved in the proceedings be paid from the principal of
Elaine’s Trust.” Id.
The Cooks appealed the probate court’s judgment and
order, asserting two points of error:
(1) in permitting the Bank to modify Art. V, paragraph B of
the Trust, allowing Bank to invade the Trust corpus to make
discretionary principal distributions; and (2) when it
failed to require Bank to provide financial information to
the Cooks relating to the Trust, including David’s total
income, and David’s income from the Clarence Trust.
In re Elaine Emma Short Revocable Living Tr. Agreement Dated
July 17, 1984, as Amended (Short Trust I), 2019 WL 2417367, at
*4 (App. June 10, 2019) (mem. op.).
David cross-appealed, contending that the probate
court abused its discretion when it granted the Cooks’ request
to have their attorneys’ fees and costs paid from the Trust.
Id.
The ICA affirmed the probate court “in all respects
except as to the grant of the Cooks’ attorneys’ fees and costs
which were to be paid out of the Trust,” which the ICA reversed.
Id. at *12.
The Cooks then sought review by this court, contending
that the ICA erred in the following:
(1) after finding an ambiguity in the trust, weighing
conflicting evidence 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; (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; and
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(3) determining that the probate court abused its
discretion in awarding attorneys’ fees and costs to the
Cooks.
Short Trust II, 147 Hawaiʻi at 464, 465 P.3d at 911 (internal
footnotes omitted).
We accepted certiorari. As to the first contention,
we held that the ICA “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.” Id. at
467, 465 P.3d at 914.
We reasoned that,
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. . . . In short, the probate court did not
articulate the factual basis of its ruling.
Id. at 465, 465 P.3d at 912.
Additionally, we addressed the application of HPR Rule
20, which provides, “[t]he court by written order may retain a
contested matter on the regular probate calendar or may assign
the contested matter to the civil trials calendar of the circuit
court.” HPR R. 20(a). We explained that, “[a]lthough 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.’” Short Trust II, 147 Hawaiʻi at 469,
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465 P.3d at 916. By not issuing an HPR Rule 20 order, “the
parties were not provided an opportunity under HPR Rule 20(d) to
request that the probate court adopt [Hawaiʻi Rules of Civil
Procedure] Rule 52 and render findings of fact at the time an
order of retention should have been issued.” Id. We further
reasoned:
[W]hile 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.
Id. at 471, 465 P.3d at 918.
Thus, we concluded that we were unable to conduct an
appropriate appellate review due to the “complete absence of
findings by the probate court preclud[ing] us from being able to
determine which facts the court relied upon[,] and which
underlay the court’s modification of Elaine’s Trust.” 4 Id.
As to the second contention, we held that “the ICA
erred in holding that the terms of Elaine’s Trust can supersede
HRS § 560:7-303 [(2006)] to limit which beneficiaries are
entitled to trust and accounts information from the trustee.”
4 In a separate opinion concurring in part and dissenting in part, the minority would have affirmed the ICA as to this question. The dissent argued that our caselaw and the HPR did not require the probate court to enter findings of fact under the circumstances there at issue and, as such, the ICA properly reviewed the extrinsic evidence in the record to affirm the probate court. Short Trust II, 147 Hawaiʻi at 478, 465 P.3d at 925 (Recktenwald, C.J., concurring in part and dissenting in part).
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Id. at 474, 465 P.3d at 921. We explained that 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).” Short Trust II at 472, 465 P.3d at
919. Thus, we concluded that “[w]hile 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.” Id. at 474, 465 P.3d at 921.
Finally, this court acknowledged but did not reach a
decision regarding the Cooks’ third contention that the ICA
erred in determining that the probate court abused its
discretion in awarding attorneys’ fees and costs to the Cooks.
See id. at 464, 465 P.3d at 911.
Ultimately, we vacated and remanded the proceeding as
follows:
[T]he 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
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court for further proceedings consistent with this
opinion.[ 5]
Id., at 475, 465 P.3d at 922.
B. Proceedings on Remand 6
On September 29, 2020, FHB filed a new Petition for
Instructions Regarding Principal Distributions and Attorneys’
Fees, and for Modification of Trust in its capacity as trustee
for the Elaine Short Trust. In its petition, FHB requested that
the probate court:
(a) issue a formal order retaining this matter in the
Probate Court (assuming an objection is filed, which would
make the petition contested under HPR 19); (b) consider the
evidence proffered in this Petition; and (c) render
findings of fact and conclusions of law in Petitioner’s
favor on the unresolved questions. These questions include
whether to modify the Trust to allow distributions of
principal to David and determining whether the Contingent
Remainder Beneficiaries may receive attorneys’ fees from
the Trust.
On March 5, 2021, the probate court entered written
findings of fact and conclusions of law regarding FHB’s
September 29, 2020, Petition for Instructions Regarding
Distributions and Attorneys’ Fees, and for Modification of
Trust. The probate court made the following relevant findings
of fact:
5 Because the Cooks did not challenge in their application for certiorari the ICA’s holding that they were not entitled to accounting information for Clarence’s trust, the Short Trust II court did not address the issue. Short Trust II, 147 Hawaiʻi at 464 n.15, 465 P.3d at 911 n.15.
6 The Honorable Judge R. Mark Browning presiding.
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Contingent Beneficiaries
29. The Trust does not mention the Contingent
Beneficiaries by name and the Contingent Remainder
Beneficiaries will only receive an interest as “heirs-atlaw” if there are no surviving issue of the Settlor
remaining. Had the Settlor intended to provide for the
Contingent Remainder Beneficiaries, she could have left a
specific devise or devised a portion of the trust estate to
the Contingent Remainder Beneficiaries. That the Settlor
did not is indicative of her overarching intent with her
Trust, especially as compared to the specifically stated,
and unquestionably clear, intent to provide for her sons.
30. The Settlor’s primary intent in creating the Trust is
to provide support for her issue. Currently, David is the
Settlor’s last surviving issue. If the Trustee were to
distribute income only to David, David would not be the
primary beneficiary of the Trust. Instead, the Contingent
Remainder Beneficiaries, the Settlor’s heirs at law, would
primarily benefit from the trust estate because the
Settlor’s heirs at law would receive the bulk of the trust
estate. It does not appear that the Settlor intended such
a result.
31. The Petitioner included a declaration from Carol Short
with the Petition. Carol Short is the surviving spouse of
Robert Short, who was the brother-in-law of the Settlor.
Carol Short knew Elaine and Clarence for 40 years and was
in regular contact with Settlor before her death. Among
other things, Carol Short attests that Elaine never
mentioned the Contingent Remainder Beneficiaries. The
Court finds this declaration to be both credible and
persuasive. Based on this declaration, the Settlor was not
close to her nieces and nephews or extended family members.
Prior to the death of the Settlor, there had been little to
no contact between the Settlor and the Settlor’s siblings,
nieces or nephews in decades.
32. The Settlor’s nieces and nephews are beneficiaries, as
an alternative, only if there are no remaining issue of the
Settlor then surviving. Based on these facts, in all
likelihood, the Settlor did not anticipate that William
would predecease the Settlor without issue, and that David
would also have no issue.
33. The Court rejects the declarations submitted by the
Contingent Remainder Beneficiaries. The declarations are
self-serving, looking to establish extrinsic evidence of a
“warm relationship” between the Contingent Remainder
Beneficiaries and Settlor. The Court finds these
declarations not credible and also unpersuasive. Even
considered on their merits, these declarations are
insufficient to overshadow Settlor’s intent as to her
Trust, as evidenced by the text of the Trust itself.
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34. Beyond these general considerations, the Court also
disregards the Declaration of Marcia M. Kleeberger because
it is based on hearsay, not personal knowledge. Even if
this declaration were based on personal knowledge, it does
not offer sufficient evidentiary basis to conclude that
Elaine had such a close and warm relationship with the
Contingent Remainder Beneficiaries such that Elaine
intended her Trust to benefit the Contingent Remainder
Beneficiaries over her own children and grandchildren. Nor
do the terms of the Trust support such a conclusion.
35. The Contingent Remainder Beneficiaries also offer the
Declaration of Susan Kay Cook Galvin dated September 15,
2015 (the “Galvin I Declaration”) and the Supplemental
Declaration of Susan Kay Cook Galvin dated October 29, 2015
(the “Galvin II Declaration”) as evidence of the alleged
warm and close relationship between Elaine and the
Contingent Beneficiaries. The Court concludes that the
facts offered in these declarations (regarding significant
life events in the 1960s, 1970s, 1980s, and 1990s) do not
offer sufficient evidentiary basis to conclude that Elaine
had such a close and warm relationship with the Contingent
Remainder Beneficiaries such that Elaine intended her Trust
to benefit the Contingent Remainder Beneficiaries over her
own children and grandchildren. Nor do the terms of the
Trust itself support such a conclusion.
36. On this point, the Court notes that Elaine created the
original Trust instrument on July 17, 1984, and amended the
Trust on March 10, 1993. Elaine also executed the Last
Will and Testament of Elaine Emma Short on September 4,
1979, which was probated in Elaine’s probate proceeding, P.
No. 13-1-0671. According to the Galvin II Declaration,
Elaine visited the Contingent Remainder Beneficiaries
several times prior to the creation of the Trust, and
during the period she created and amended her Trust.
During this same time period, Elaine failed to devise a
portion of the trust estate to the Contingent Remainder
Beneficiaries and failed to specifically name any of the
Contingent Remainder Beneficiaries in any of her estate
planning documents. Additionally, Elaine failed to provide
for the Contingent Remainder Beneficiaries in any respect
in Elaine’s Will, even though Elaine and Clarence visited
the Contingent Remainder Beneficiaries in the years prior
to signing Elaine’s Will in 1979. Contingent Remainder
Beneficiaries’ argument that she must have intended to
provide for them due to the “warm relationship,” is
therefore unpersuasive.
37. As to Contingent Remainder Beneficiaries’ request for
attorneys’ fees, the Court finds that their status cannot
presently be ascertained. Currently, the only known and
ascertained beneficiary of the Trust is David. At this
time, the remainder beneficiaries cannot be ascertained.
If David were to have issue at his death, the Contingent
Remainder Beneficiaries would cease from being
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beneficiaries of the Trust. Additionally, if any of the
Settlor’s current heirs at law fail to survive David, they
would no longer be contingent remainder beneficiaries of
the Trust.
38. To the extent these findings of fact should be
construed as conclusions of law, they shall be so
construed.
(Emphasis added.)
The probate court also concluded that the Cooks were
not entitled to payment of their attorneys’ fees out of the
trust. Relying on Von Holt v. Williamson, 23 Haw. 245, 248-249
(Haw. Terr. 1916), where this court held “It is well established
that fees of counsel for a litigant whose interest is contingent
cannot be allowed out of the trust fund,” the probate court
concluded that “the payment of attorneys’ fees and costs for the
Contingent Remainder Beneficiaries, relating to the 2015
Petition, the appeal of the 2015 Petition, and this Petition,
are not properly payable from the Trust.” Further, relying on
In re Estate of Campbell, 46 Haw. 475, 522, 382 P.2d 920, 953
(1963), for the proposition that “a beneficiary may be awarded
attorneys’ fees and costs from a trust or estate only where the
beneficiaries’ participation in the case advances the interest
of all beneficiaries,” the probate court concluded that “the
Contingent Remainder Beneficiaries’ position was self-serving
and clearly did not benefit the interests of all beneficiaries.
Accordingly, the Contingent Remainder Beneficiaries’ request for
attorneys’ fees and costs is denied.”
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Therefore, the probate court ordered: “The Contingent
Remainder Beneficiaries are not entitled to the payment of their
attorneys’ fees incurred in connection with this Petition and
the Petition for Instructions Regarding Distribution and
Termination, and for Modification of Trust filed in herein [sic]
on August 12, 2015[.]” Judgment on the order was filed on
April 6, 2021.
The Cooks appealed the probate court’s April 6, 2021,
judgment. In their opening brief on appeal, the Cooks asserted
three points of error:
(A) The court erred in permitting Trustee First Hawaiian
Bank to modify subparagraph B of Article V of the trust,
allowing Trustee First Hawaiian Bank to invade the Trust
corpus to make discretionary principal distributions.
(B) The court erred when it resolved disputed issues of
material fact without an evidentiary hearing.
(C) The court erred in refusing to consider an award of
attorneys’ fees to the Remainder Beneficiaries where they
were made parties to the proceeding in order to bind all
remainder beneficiaries.
Relying on Graham v. Washington University, 58 Haw.
370, 569 P.2d 896 (1977), the Cooks argued that “[t]he probate
court should have held an evidentiary hearing to fairly resolve
. . . disputed issues of material fact rather than picking and
choosing what extrinsic evidence it intended to credit.” They
also argued that the standard in summary judgment cases should
have been applied in viewing underlying facts in the record “in
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the light most favorable to the party opposing the motion.” Id.
at 374, 569 P.2d at 899 (citation omitted).
Next, the Cooks argued that remainder beneficiaries
should not be precluded from receiving an award of fees from the
trust. The Cooks relied on Bishop Trust Co. v. Jacobs, 36 Haw.
686, 691 (Haw. Terr. 1944), and Valentin v. Brunette, 26 Haw.
498, 499 (Haw. Terr. 1922), for the proposition that probate
courts have discretion to award fees upon determining the
remainder beneficiaries’ position was helpful to resolve an
ambiguity in the trust and that such was the case here.
The Cooks further argued that, under In re Estate of
Campbell, recovery of fees by all parties is permitted “when
litigation is in advancement of, and not in opposition to, the
interests of all the beneficiaries of a trust.” 46 Haw. at 522,
382 P.2d at 953. The Cooks contended that their participation
in the litigation was to the benefit of all parties involved,
“including any unascertained beneficiaries - Elaine’s
descendants - who may benefit from her Trust in the future,” by
“ensur[ing] the Trust is administered properly” for the benefit
of all potential beneficiaries, including issue David may have
in the future.
The ICA entered a Summary Disposition Order on
October 25, 2024.
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The ICA determined that the probate court failed to
follow this court’s direction in Short Trust II because the
probate court again decided the issue without first issuing an
HPR Rule 20(a) order. Therefore, the ICA vacated the probate
court’s findings of disputed facts because the probate court’s
failure to enter an HPR Rule 20(a) order was structural error
and “[t]his structural error was a departure from the supreme
court’s mandate, and requires another remand of the contested
matter.”
As is relevant to this appeal, the ICA then concluded
that the Cooks’ request for attorneys’ fees to be paid from
Trust principal “arises independent of the probate court’s
failure to enter an HPR Rule 20(a) order.” Aside from
acknowledging that there was no law of the case relevant to this
issue, the ICA did not further explain its reasoning and cited
no authority in support of its conclusion that the two issues
arise independent of each other.
Addressing the issue of attorneys’ fees, the ICA
relied on this court’s statement in Von Holt that “[i]t is well
established that fees of counsel for a litigant whose interest
is contingent cannot be allowed out of the trust fund” and
concluded that “[t]he Cooks are at most contingent remainder
beneficiaries of Elaine’s Trust.” 23 Haw. at 248-49.
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The ICA recognized an exception to the rule requiring
parties to bear their own fees and costs when “the party
advances ‘the interests of all beneficiaries of a trust.’”
(Quoting In re Estate of Campbell, 46 Haw. at 522, 382 P.2d at
953.) The ICA reasoned that the Cooks did not fall under the In
re Estate of Campbell exception because they “tried to advance
their own interests, which were opposed to those of David, the
primary trust beneficiary.”
Thus, the ICA concluded that “[t]he probate court
applied the correct Hawaiʻi law. It did not abuse its discretion
by following the law and denying attorneys[’] fees to the
Cooks.” Ultimately, the ICA affirmed the probate court only as
to the denial of attorneys’ fees and otherwise vacated and
remanded the case for resolution of the contested matters
following entry of an HPR Rule 20 order, provided that “[o]n
remand, the probate court may assign the contested matter to the
circuit court civil trials calendar under HPR Rule 20(b) if the
probate court considers it appropriate.”
The Cooks then sought certiorari review of the ICA’s
affirmance of the probate court’s denial of attorneys’ fees,
which this court granted. In their application for writ of
certiorari, the Cooks present two related questions:
(1) Whether the ICA gravely erred when it affirmed the
probate court’s decision to deny a fee award made by a
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prior probate court without requiring the entry of an HPR
Rule 20(a) order.
(2) Whether the ICA gravely erred in affirming the probate
court’s reversal of the prior probate court’s award of fees
where the Trustee served the Remainder Beneficiaries with
process to make them parties to the proceeding to bind them
and all remainder beneficiaries and where the Remainder
Beneficiaries were successful in requiring the Trustee to
provide financial information for the benefit of all
beneficiaries and where material questions of fact remain
regarding the Settlor’s intent in establishing and amending
the Trust.
III. STANDARD OF REVIEW
“This court reviews a lower court’s award of
attorneys’ fees for abuse of discretion.” In re Tr. Agreement
Dated June 6, 1974, 145 Hawaiʻi 300, 309, 452 P.3d 297, 306
(2019).
The trial court abuses its discretion if it bases its
ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence. In other words, an
abuse of discretion occurs where the trial court has
clearly exceeded the bounds of reason or disregarded rules
or principles of law or practice to the substantial
detriment of a party litigant.
Id. at 310, 452 P.3d at 307 (citation and quotation omitted).
IV. DISCUSSION
The Cooks seek an award of attorneys’ fees and costs
in both the initial probate proceedings and now in the
proceedings on remand.
As discussed below, we vacate the ICA’s affirmance of
the probate court’s denial of attorneys’ fees. We do so because
the determination that the Cooks’ participation in the
litigation was not in the interest of the trust and all its
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beneficiaries was premature in the absence of a decision on the
merits of the underlying issue.
A. The ICA Erred in Affirming the Probate Court’s Denial of
the Cooks’ Attorneys’ Fees Without Requiring the Entry of
an HPR Rule 20(a) Order
The probate court’s denial of the Cooks’ attorneys’
fees is reviewed for abuse of discretion, and will only be set
aside when the court “clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.” In re Tr. Agreement
Dated June 6, 1974, 145 Hawaiʻi at 310, 452 P.3d at 307.
This court held in Short Trust II 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. HPR Rule 20(a). . . . [I]f 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). 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, 51 S.Ct. 243, 75 L.Ed.
520 (1931)).
147 Hawaiʻi at 468-69, 465 P.3d at 915-16 (emphasis added)
(footnotes omitted).
The ICA correctly noted that we did not reach the
question of attorneys’ fees in Short Trust II, and that,
accordingly, “there is no law of the case on this issue.” The
question now before this court is whether the denial of fees
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could be properly entered independent of an HPR Rule 20(a)
order. The Cooks argue it cannot because “[a] full and complete
record of the facts of the dispute, the roles of the parties
involved and the intent of the settlor need to be ascertained
before a decision on fees is appropriate in this contested
matter.” 7 FHB and David counter that factual findings are not
necessary as the award of attorneys’ fees is a question of law. 8
Because, as discussed below, the probate court could
not properly conclude that the Cooks’ “position was self-serving
and clearly did not benefit the interests of all beneficiaries”
without first reaching the merits of the case in a manner
consistent with the dictates of HPR Rule 20, the denial of the
Cooks’ fees was not “independent of the probate court’s failure
to enter an HPR Rule 20(a) order.” The ICA therefore erred when
it remanded the case but left the probate court’s denial of fees
intact. Thus, we remand the issue of attorneys’ fees to the
7 The Cooks also contend that the standard in summary judgment cases should apply here. The Cooks rely on Graham, 58 Haw. at 370, 569 P.2d at 896, where this court remanded for further proceedings a case where the trial court erroneously excluded extrinsic evidence of the testator’s intent. Graham is inapt: there, the probate court had granted a motion for summary judgment, where inferences should properly be drawn in favor of the nonmoving party, whereas here the probate court denied a motion for attorneys’ fees, which is reviewed for abuse of discretion.
8 Both FHB and David also contend that this issue is waived because the error was not preserved below. However, given that the Cooks raised the need for an evidentiary hearing at the first opportunity, this issue is not waived.
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probate court to be decided anew in light of a disposition in
compliance with the HPR.
That the Cooks have failed to identify with any
specificity what further evidence could have been adduced at an
evidentiary hearing does not necessitate another outcome. Here,
remand is required so that the probate court can finally decide
the threshold question of whether FHB, as trustee, may properly
distribute principal to David during his lifetime. Only then
may the probate court properly determine if the Cooks’
participation was in the best interest of the trust, for
example, by finding that their participation, “with their
conflicting claims, their evidence and their arguments, was of
assistance to the court in its determination of the duty of the
trustees.” Valentin, 26 Haw. at 498.
B. The Proper Inquiry for Determining Whether a Trust
Litigant’s Participation Advanced the Interests of All the
Beneficiaries of the Trust is Whether the Party’s
Appearance Assisted in Clarifying the Duties of the Trustee
in the Face of an Ambiguity, Which Requires a Determination
on the Merits of the Ambiguity
In Short Trust II, we did not reach whether the Cooks
were entitled to fees despite noting that the question was
presented before this court. Short Trust II, 147 Hawaiʻi at 464,
465 P.3d at 911 (“In their application for writ of certiorari,
the Cooks contend that the ICA gravely erred in the following:
. . . (3) determining that the probate court abused its
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discretion in awarding attorneys’ fees and costs to the
Cooks.”). Nor was the issue addressed in the opinion concurring
and dissenting in part. See id. at 475-78, 465 P.3d at 922-25
(Recktenwald, C.J., concurring and dissenting in part). When we
vacated the ICA’s August 1, 2019, Judgment on Appeal and vacated
the probate court’s December 16, 2015, judgment and order, we
implicitly vacated the probate court’s award of attorneys’ fees
to all parties, including the Cooks. Id. at 475, 465 P.3d at
922. With no law of the case, we address this question anew.
This court has adopted a two-step test to determine
whether a party in trust litigation may recover attorneys’ fees:
In summary, the first question in this type of case is
whether the proceeding was for the benefit of the estate
and in the interest of all parties concerned. If it was
“the trust estate should bear the costs and expenses,
including a reasonable attorney’s fee, of all parties
affected and brought before the court.” The next question,
however, is: To what part of the estate should such
expenses be charged? That depends upon the circumstances
of each individual case. “Where the suit affects the
corpus it is reasonable and proper that the corpus should
bear such expenses. Likewise where the suit affects the
income generally the general income should bear such
expenses. If it affects both the corpus and the general
income it should be prorated accordingly.” When “neither
the corpus of the trust estate nor the general income
accrued or to accrue therefrom was affected” then the
particular fund affected should bear the expenses of the
suit.
In re Estate of Campbell, 46 Haw. at 523-24, 382 P.2d at 954
(quoting Wodehouse v. Robinson, 27 Haw. 602, 603 (Haw. Terr.
1923)).
Trust litigation, like other civil litigation, follows
the American rule when it comes to attorneys’ fees: “The general
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rule is that each party to litigation must pay his own counsel
fees, in the absence of an agreement or statutory authority for
recovery thereof.” Id. at 522, 382 P.2d at 953. However, this
court has recognized an exception to this general rule: “when
litigation is in advancement of, and not in opposition to, the
interests of all the beneficiaries of a trust, counsel fees may
be allowed to litigants out of the estate.” Id.
Our early caselaw held contingent beneficiaries were
not entitled to attorneys’ fees from the “trust fund.” E.g.,
Von Holt, 23 Haw. at 247-48. In Von Holt, the court resolved a
dispute between the testator’s daughter and granddaughter
concerning entitlement to income from a trust estate that
constituted a resulting trust in favor of the daughter. 23 Haw.
at 245. The parties then sought attorneys’ fees from the corpus
of the trust estate. Id. at 245-46. This court characterized
the case as
a friendly controversy between the daughter and
granddaughter as to which of them the said income shall go
during the life of the daughter . . . and that the trustee
appears as a disinterested party, taking sides neither with
the mother nor the infant, and that the controversy does
not involve the principal trust.
Id. at 246.
This court held that neither party was entitled to
attorneys’ fees from the trust estate under the facts of the
case. Id. at 247. Regarding the daughter, whom the trial court
had determined was entitled to the income, the Von Holt court
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explained that she was not entitled to attorneys’ fees from the
corpus because “the cost of the suit must be borne by the
particular fund concerning which the suit arose.” Id. at 248
(quoting 2 Perry on Trusts § 903a (6th ed.)). Thus, because the
suit concerned the income from the trust estate, the daughter
was not entitled to attorneys’ fees from the corpus of the trust
estate, but only from its income, to which she was already
entitled. See id. at 247-48
Regarding the granddaughter, a contingent beneficiary,
this court adopted the test established in Hobbs v. McLean, 117
U.S. 567 (1886), that “the litigation must be in advancement of,
and not in opposition to, the interest of all the beneficiaries
or no allowance of counsels’ fees out of the trust fund will be
made.” Von Holt, 23 Haw. at 248. Nevertheless, this court held
that the granddaughter was not entitled to fees from the corpus
of the trust estate because “[i]t is well established that fees
of counsel for a litigant whose interest is contingent cannot be
allowed out of the trust fund.” Id. The Von Holt court
distinguished an earlier case, Fitchie v. Brown, 19 Haw. 415
(Haw. Terr. 1909), where this court “authoriz[ed] the payment of
the fees of counsel to the various claimants in this case out of
the corpus of the trust estate.” Von Holt, 23 Haw. at 248. The
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court noted that Fitchie involved exceptional circumstances 9 and
concluded that that case was not “an authority generally for the
payment of counsels’ fees for diverse claimants to a particular
fund out of the principal trust fund.” Id.
Subsequently, this court’s analysis shifted away from
a categorical prohibition on awarding attorneys’ fees for
contingent beneficiaries. As discussed above, in In re Estate
of Campbell, this court stated the rule that “when litigation is
in advancement of, and not in opposition to, the interests of
all the beneficiaries of a trust, counsel fees may be allowed to
litigants out of the estate.” 46 Haw. at 522, 382 P.2d at 953.
However, absent provisions to the contrary, the distribution of
attorneys’ fees from the corpus is only permissible when the
corpus is in controversy. Id. at 523-24, 382 P.2d at 953-54.
Thus, the In re Estate of Campbell court explained:
Moreover, even when construction of an ambiguous will is
involved that does not always warrant payment of attorneys’
fees out of corpus as distinguished from income. When the
controversy is in regard to the enjoyment of the income and
the litigants have no interest in the corpus or have only a
9 The Von Holt court characterized the Fitchie case as follows:
In a contest concerning the construction of a will it is
only under exceptional circumstances that the estate of a
decedent should bear the expenses of an unsuccessful appeal
from a decree of this court. . . . The question involved
in their appeal, however, was novel and important and the
amount involved was very large.
Von Holt, 23 Haw. at 248.
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contingent interest, no fee is allowable out of corpus.
Von Holt v. Williamson, 23 Haw. 245. In such case the
income or share thereof the disposition of which is in
controversy should bear the expenses of the suit.
Wodehouse v. Robinson, supra, 27 Haw. 602. And even when
the right to the corpus is in litigation, a fee may not be
paid out of the corpus when the time for distribution has
not been reached and such payment would reduce the income
of the life tenant who has no interest in the controversy.
Bishop Trust Co. v. Cooke Trust Co., supra, 39 Haw. 641,
651 [(Haw.Terr. 1953)].
Id. at 523, 382 P.2d at 953.
Thus, under In re Estate of Campbell, a contingent
beneficiary is limited to recovery from the trust’s income only
if “the controversy is in regard to the enjoyment of the
income.” Id. Here, the dispute does not involve trust income,
but rather distributions from the corpus. As such, In re Estate
of Campbell would not bar the Cooks’ entitlement to an award of
attorneys’ fees, provided its two part-test is satisfied. See
id. at 523, 382 P.2d at 954.
This shift in approach, permitting recovery from the
portion of the trust at issue in the case, as exemplified by In
re Estate of Campbell, is consistent with an analysis for which
the operative question is not the type of interest held by the
litigant, but rather the purpose of the litigant’s action, i.e.,
whether it benefited the trust as a whole. This trend toward
focusing on the purpose of the action, rather than the interest
held by the litigant, was codified in the 2018 Uniform Trust
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Code (UTC), which the Hawaiʻi legislature adopted in 2021. 10 2021
Haw. Sess. Laws Act 32 at 55-93. The UTC which provides in
relevant part:
In a judicial proceeding involving the administration,
interpretation, or validity of a trust, the court may award
reasonable attorney’s fees, costs, and expenses to any
party to the trust who has acted in the best interest of
the trust as a whole, to be paid by another party or from
the trust that is the subject of the controversy.
HRS § 554D-1004(a) (Supp. 2022) (emphasis added).
This position is also consistent with the approach
announced in Comment D to § 88 of the Restatement (Third) of
10 The Cooks do not argue that UTC governs the resolution of this appeal; instead, the Cooks assert that their interpretation of the law “is consistent with the [UTC], which has been in effect since January 1, 2022.” David counters that the UTC “is not application [sic] to this case” because “[t]his proceeding was originally commenced in 2015” and, under HRS § 554-1104(2) (eff. Jan. 1, 2022), “[the UTC] applies to all judicial proceedings concerning trusts commenced on or after January 1, 2022.”
Although the UTC was adopted after this proceeding was commenced, the UTC was given retroactive application through HRS § 554D-1104(3), which provides:
This chapter applies to judicial proceedings concerning
trusts commenced before January 1, 2022, unless the court
finds that application of a particular provision of this
chapter would substantially interfere with the effective
conduct of the judicial proceedings or prejudice the rights
of the parties, in which case the particular provision of
this chapter shall not apply and the superseded law
applies[.]
The probate court proceedings under review here were held prior to the enactment of the UTC. Thus, it would prejudice the parties to apply the new HRS § 554D-1004(a) to an appeal from those proceedings, which were decided under prior law. We express no opinion on the retroactive applicability of the provision on remand.
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Trusts, 11 which provides that “[a] court may, in the interest of
justice, make an award of costs from the trust estate to a
beneficiary for some or all of his or her attorney fees and
other expenses.” Restatement (Third) of Trusts § 88 cmt. D
(Am. L. Inst. 2007).
Under both the UTC and the Restatement (Third) of
Trusts, a contingent remainder beneficiary may properly be
awarded attorneys’ fees if they acted “in the best interest of
the trust as a whole.” See HRS § 554D-1004(a); Restatement
11 Section 88 of the Restatement (Third) of the Trusts, “Power to Incur and Pay Expenses,” provides, “A trustee can properly incur and pay expenses that are reasonable in amount and appropriate to the purposes and circumstances of the trust and to the experience, skills, responsibilities, and other circumstances of the trustee.” Comment D to § 88 provides in relevant part:
A court may, in the interest of justice, make an award of
costs from the trust estate to a beneficiary for some or
all of his or her attorney fees and other expenses.
Ordinarily, however, awards of this type are limited to
situations in which the beneficiary's participation in the
proceeding is beneficial to the trust, usually either
because of a recovery that benefits the trust’s
beneficiaries generally (rather than merely the beneficiary
in question) or by clarifying a significant uncertainty in
the terms of the trust.
T[rustee] petitions the court for instructions to clarify
uncertainties in the meaning of certain distributive
provisions of the trust. The court found that there was
need to clarify the provisions, which it concluded were
ambiguous, and admitted extrinsic evidence that led to
interpretations clarifying the uncertainties. The court
may award appropriate costs to a group of beneficiaries
who, in good faith, urged a reasonable but unsuccessful
interpretation, as well as to the side that prevailed.
(Emphasis added.)
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(Third) of Trusts § 88. As this court emphasized in Short Trust
II, “Hawaiʻi law is clear that a trust beneficiary is any person
with a ‘future interest, vested or contingent.’” 147 Hawaiʻi at
472, 465 P.3d at 919 (quoting HRS § 560:1-201 (2006) (emphasis
added)). Thus, the UTC and the Restatement (Third) no longer
recognize the distinction made between classes of beneficiaries
for purposes of awarding reasonable attorneys’ fees. HRS
§ 554D-1004(a) (providing “the court may award reasonable
attorney’s fees, costs, and expenses to any party to the trust
who has acted in the best interest of the trust as a whole”)
(emphasis added); Restatement (Third) of Trusts § 88 cmt. D
(permitting award of attorneys’ fees to beneficiaries when “in
the interest of justice”). Thus, if decided under the UTC, the
Cooks could properly be awarded attorneys’ fees if the probate
court found they “act[ed] in the best interest of the trust as a
whole.” See HRS § 554D-1004(a). While not controlling here,
the evolution of the law in the UTC provides persuasive support
for a more liberal approach to awarding attorneys’ fees in this
context.
Courts have found resolving ambiguity in the trust to
be in the interest of the trust, In re Estate of Campbell, 46
Hawaiʻi at 522, 382 P.2d at 953 (noting that “fees have been
allowed and charged to corpus when the construction of an
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ambiguous will was involved”), particularly when the issues
presented are questions of first impression clarifying a
trustee’s duties, Valentin, 26 Haw. 498. For example, in
Valentin, trustees made life-tenants and remainder beneficiaries
of the estate parties to a suit seeking instructions as to
whether various expenditures should be paid out of the estate’s
principal or income. 26 Haw. at 498. This court held that
“[u]nder these circumstances the case falls within the rule laid
down, under somewhat conflicting authorities elsewhere, in Evans
v. Garvie, 23 Haw. 694 [(Haw. Terr. 1919),]” that the parties’
attorneys’ fees could properly be paid out of the corpus of the
estate. Valentin, 26 Haw. at 498. The Valentin court reasoned
that, as questions of first impression,
[t]he appearance of the life-tenants and the remaindermen
was made necessary by the uncertainty of the trustees as to
their duty in the premises and by their petition for
instructions. The appearance of these parties, with their
conflicting claims, their evidence and their arguments, was
of assistance to the court in its determination of the duty
of the trustees. In other words, the proceeding was for
the benefit of the estate and in the interest of all
parties concerned.
Id.
Evans, the case relied upon by the Valentin court,
involved a dispute over the apportionment of “extraordinary”
stock dividends between a mother, who was entitled to income
from the trust during her lifetime, and her son, who was
entitled to half of the estate, provided he survived to the age
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of 21, with the other half going to the mother’s heirs at her
passing. 23 Haw. at 695. This court again reasoned that
attorneys’ fees were warranted because “[i]t was an open
question in this jurisdiction, and the decisions elsewhere are
inharmonious.” Id. at 694. Thus, this court concluded that
“[t]he submission of the matter to this court was, therefore, a
proceeding for the benefit of the estate and in the interests of
all the parties concerned.” Id. at 695.
Interestingly, the Evans court distinguished that case
from Von Holt, where this court held that “[i]t is well
established that fees of counsel for a litigant whose interest
is contingent cannot be allowed out of the trust fund.” Von
Holt, 23 Haw. at 248. The Evans court explained:
The circumstances of this case are different from those
involved in Von Holt v. Williamson, . . . where the
successful party established a right to certain income by
way of a resulting trust, and in which claims of counsel
for fees were disallowed. The decision in that case is
consistent with the view that where litigation is in
advancement of, and not in opposition to, the interests of
all the beneficiaries of a trust counsel fees may be
allowed to be paid out of the corpus of the trust fund.
23 Haw. at 695.
Under our caselaw, the proper inquiry when determining
if a trust litigant’s participation advanced the interests of
all the trust beneficiaries requires a determination on the
merits, followed by a determination of whether the litigant’s
appearance assisted in clarifying the duties of the trustee in
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the face of an ambiguity. See Valentin, 26 Haw. at 498 (“The
appearance of these [adverse] parties, with their conflicting
claims, their evidence and their arguments, was of assistance to
the court in its determination of the duty of the trustees.”).
Because the probate court’s determination of the merits of the
case was vacated by the ICA due to its failure to enter an HPR
Rule 20(a) order, the probate court’s denial of attorneys’ fees
must also be vacated.
C. The Circuit Court Abused Its Discretion in Denying the
Cooks Attorneys’ Fees and Costs Because It Based Its
Decision on an Erroneous Statement of Law
We address the probate court’s reasoning in denying
the Cooks attorneys’ fees solely to provide guidance to the
probate court on remand. We conclude that the probate court
based the denial on an erroneous view of the law. See In re Tr.
Agreement Dated June 6, 1974, 145 Hawaiʻi at 309, 452 P.3d at 306
(quoting Chun v. Bd. of Tr. of Emp. Ret. Sys., 106 Hawaiʻi 416,
431, 106 P.3d 339, 354 (2005) (“An abuse of discretion occurs
when a trial court ‘has clearly exceeded the bounds of reason or
has disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.’”)).
In its findings of fact and conclusions of law, the
probate court concluded that the Cooks were not entitled to
attorneys’ fees because (1) the Cooks are contingent remainder
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beneficiaries and (2) the Cooks’ position “did not benefit the
interests of all beneficiaries.” Specifically, regarding the
award of attorneys’ fees to contingent remainder beneficiaries,
the probate court concluded that, under Von Holt, fees were not
permissible.
As discussed above, the correct inquiry for the
probate court is not whether the party-litigant is a contingent
remainder beneficiary but rather whether their position was in
the best interest of the trust as a whole. See Valentin, 26
Haw. at 498; In re Estate of Campbell, 46 Haw. at 522, 382 P.2d
at 953. Thus, the probate court’s conclusion of law was
erroneous.
Further, as a separate basis for its denial, the
probate court concluded the Cooks’ position “did not benefit the
interests of all beneficiaries” because it found that the Cooks’
declarations were self-serving. In reaching this conclusion,
the probate court again applied the incorrect standard.
The proper inquiry for determining whether a trust
litigant’s participation advanced the interests of all the
beneficiaries of the trust includes whether the party’s
appearance assisted in clarifying the duties of the trustee in
the face of an ambiguity. See Valentin, 26 Haw. at 498. The
Cooks’ position that distributions of trust principal would be
inappropriate effectively advocated for maintaining the status
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quo, with distributions being limited to the income. The
probate court did not address whether this position was in the
best interest of the trust. The probate court also did not
address whether the Cooks’ position would have benefited David’s
issue, should he have children, and was thus in the interest of
the trust as a whole. See In re Estate of Campbell, 46 Haw. at
508, 382 P.2d at 946 (explaining that “it is recognized in these
cases that the principal of the trust is to remain intact to
provide an income for the grandchildren as well as others” and
that wrongful depletion of corpus is a potential loss to future
takers). Further, the probate court did not directly address
whether “[t]he appearance of these parties, with their
conflicting claims, their evidence and their arguments, was of
assistance to the court in its determination of the duty of the
trustees.” See Valentin, 26 Haw. at 498.
On remand, the probate court should, consistent with
this opinion, determine whether the Cooks’ participation in the
trust litigation advanced the interests of all the beneficiaries
of the trust. A proper determination would include whether the
Cooks’ participation assisted the probate court in clarifying
the duties of the trustee in the face of an ambiguity. See
Valentin, 26 Haw. at 498.
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V. CONCLUSION
For the foregoing reasons, the ICA’s November 20,
2024, Judgment on Appeal is vacated to the extent that it
affirmed in part the probate court’s March 5, 2021 “Order
Granting Petition for Instructions Regarding Principal
Distributions and Attorneys’ Fees, and for Modification of
Trust” as to the denial of the Cooks’ request for attorneys’
fees. The ICA’s Judgment on Appeal is otherwise affirmed. This
case is remanded to the probate court for proceedings consistent
with the opinion of this court.
Thomas E. Bush /s/ Mark E. Recktenwald for petitioners/appellants
Kristin Linae Cook Kline, /s/ Sabrina S. McKenna Larry Thomas Cook, Cathy
Leann Cook Bornhorst, /s/ Todd W. Eddins Susan Kay Cook Galvin and
Jodi Charlene Cook Bosben /s/ Lisa M. Ginoza
Summer G. Shelverton and /s/ Vladimir P. Devens Caitlin M. Moon
for respondent/appellee
David Short
Rosemarie S.J. Sam,
Deirdre Marie-Iha and
Kellie K.L. Wong
for respondent/appellee
First Hawaiian Bank
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