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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.




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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 . . .)

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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.




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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

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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.




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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

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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

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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 . . .)

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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.




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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




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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 Hawaii 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




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