In re: Araki

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAY-2023
07:52 AM
Dkt. 93 SO

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
(Consolidated under CAAP-XX-XXXXXXX)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-XX-XXXXXXX
THE ESTATE OF EDWARD G. ARAKI,
also known as EDWARD GORO ARAKI, Deceased.

and
CAAP-XX-XXXXXXX
THE ESTATE OF EDWARD G. ARAKI,
also known as EDWARD GORO ARAKI, Deceased.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1LP181000167)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Respondents-Appellants Estelle Mayumi Araki and Derik
Koichi Araki appeal from three orders and a judgment entered by
the Circuit Court of the First Circuit,1 sitting in probate
(Probate Court).2 For the reasons explained below, we vacate and
remand for further proceedings.
Edward G. Araki died on December 31, 2016. He was
married to Respondent-Appellee Michiyo Araki. Michiyo had two

1
The Honorable R. Mark Browning presided.
2
See Hawaii Revised Statutes (HRS) § 603-21.6 (2016).
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

daughters from a prior marriage — Petitioner-Appellee Beth Anne
Matsukawa and Respondent-Appellee Dawn Marie Bacon — whom Edward
treated as his own children. Estelle and Derik are Edward's
children from a prior marriage. Estelle and Derik had no contact
with Edward after their parents' divorce, when they were
approximately two and five years of age, respectively.3
Edward had a Will, dated September 23, 2016.4 On
March 19, 2018, Beth initiated a proceeding by filing an
application for informal probate of the Will and appointment of
personal representative. Estelle and Derik filed an objection.
They challenged Edward's testamentary capacity and alleged undue
influence by Beth and Dawn.
On May 9, 2018, Beth filed a petition for formal
probate of the Will and appointment of personal representative.
Michiyo and Dawn each filed joinders in Beth's petition. Estelle
and Derik filed an objection. They again challenged Edward's
testamentary capacity and alleged undue influence by Beth and
Dawn. Beth filed a response. Dawn filed a response. Estelle
and Derik filed two supplemental memoranda. The Probate Court
did not enter an order of assignment under Rule 20(a) of the
Hawai#i Probate Rules (HPR).
The petition was heard on April 11, 2019. On May 17,
2019, the Probate Court entered the "Order Granting Petition for
Probate of Will and Appointment of Personal Representative[.]"
The Will was admitted to probate and Beth was appointed personal
representative of Edward's estate. The "Judgment Pursuant to
Order Granting Petition for Probate of Will and Appointment of
Personal Representative" was also entered on May 17, 2019.
Estelle and Derik filed a notice of appeal on June 16, 2019,
creating CAAP-XX-XXXXXXX. On August 5, 2019, the Probate Court
entered its "Findings of Fact, Conclusions of Law, and Decision

3
The reason for this is disputed.
4
A certified copy of the "Last Will and Testament of Edward G.
Araki" is included in the record.

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and Order Granting Petition for Probate of Will and Appointment
of Personal Representative, Filed May 9, 2018."
Meanwhile, on May 28, 2019, Estelle and Derik filed a
motion to alter the Order Granting Petition and the Judgment.
The motion sought, among other things, an order of assignment to
the civil trials calendar. They filed an amended and restated
petition on their motion on June 13, 2019. Beth and Dawn filed
an objection. The motion was heard on September 5, 2019. On
October 11, 2019, the Probate Court entered its order granting in
part and denying in part the amended and restated petition (Order
on Reconsideration). The court ordered that the real property
located in #Aiea could be conveyed to Dawn, but may not be sold
until the final disposition of the pending appeal. The motion
was otherwise denied. Estelle and Derik filed a notice of appeal
on November 8, 2019, creating CAAP-XX-XXXXXXX. We consolidated
the appeals.
Estelle and Derik raise a number of points on appeal,
but one is dispositive. They argue that the Probate Court erred
by failing to follow the procedure prescribed by HPR Rule 20.
HPR Rule 20 provides, in relevant part:

DISPOSITION OF CONTESTED MATTERS.

(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.[5]

. . . .

(c) Effect of Assignment to Civil Trials Calendar.
The Hawai#i 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

5
The commentary to HPR Rule 20(a) states: "By requiring a written
order of assignment, which would ideally be a preprinted form, 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 Rule (d) below.)"

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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.

(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 Hawai#i Rules of Civil
Procedure and/or the Rules of the Circuit Courts shall be
applicable in such matter.

"A contested matter is any one in which an objection
has been filed." HPR Rule 19. Beth's application for formal
probate was a contested matter. The Probate Court did not enter
a written order of retention or assignment under HPR Rule 20(a).
Dawn argues that the Probate Court wasn't required to enter a
written order of retention or assignment, citing In re Est. of
Kam, 110 Hawai#i 8, 129 P.3d 511 (2006). Kam stands for the
proposition that the probate court has discretion whether to
retain a contested matter or assign it to the civil trials
calendar. Id. at 24, 129 P.3d at 527. The supreme court did not
reach the issue of whether a written order was required under HPR
Rule 20(a).
The latter issue was addressed in In re Elaine Emma
Short Revocable Living Tr. Agreement Dated July 17, 1984, 147
Hawai#i 456, 465 P.3d 903 (2020), which was issued after the
appeals were taken in this case. The supreme court held 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 Hawai#i 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)).

Id. at 468–69, 465 P.3d at 915–16 (emphasis added) (footnotes
omitted).

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Dawn argues that Estelle and Derik waived their
argument because they didn't raise the issue before the April 11,
2019 hearing on Beth's petition for formal probate. Their
objection to Beth's petition, however, requested "that discovery
be allowed so that . . . Estelle Araki and Derik Araki can obtain
further information as to the facts and circumstances as to
Edward Araki's physical and medical condition and his state of
mind and the circumstances surrounding the execution of his
Will[.]" The Probate Court would have had to address that
request in a written order of retention or assignment. In re Tr.
Agreement Dated June 6, 1974, 145 Hawai#i 300, 308, 452 P.3d 297,
311 (2019). "After the designation of assignment, if the party
wishes to conduct discovery, it must request that discovery be
taken." Id. (citing HPR Rule 20(d)); cf. In re Elaine Emma
Short, 147 Hawai#i at 469, 465 P.3d at 916 (noting that because
probate court "did not issue an order retaining the case in
contravention of HPR Rule 20(a) . . . , 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"). In
addition, Estelle and Derik's supplemental memorandum in support
of their objection to Beth's petition stated:

we respectfully request that the Court grant Respondents'
request to assign this case/probate as an adversarial
proceeding in order to allow Respondents an opportunity to
conduct discovery and obtain additional information
including, but not limited to, Edward Araki's medical
records that would likely reveal the extent and effect of
Edward Araki's pain medications and possibly Mr. Araki's
state of mind and to obtain further medical evaluation from
Dr. Marvit.

For the foregoing reasons, we vacate the Probate
Court's: Order Granting Petition and Judgment, both entered on
May 17, 2019; Decision and Order Granting Petition, entered on
August 5, 2019; and Order Denying Reconsideration, entered on
October 11, 2019; and remand for further proceedings. On remand,
the Probate Court should enter a written order pursuant to HPR

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Rule 20. We express no opinion about whether the Probate Court
abused its discretion by its de facto retention of Beth's
petition.
DATED: Honolulu, Hawai#i, May 31, 2023.

On the briefs:
/s/ Lisa M. Ginoza
Peter J. Lenhart, Chief Judge
for Respondents-Appellants
Estelle Mayumi Araki and /s/ Katherine G. Leonard
Derik Koichi Araki. Associate Judge

Emily H. Kawashima, /s/ Keith K. Hiraoka
for Respondent-Appellee Associate Judge
Dawn Marie Bacon.

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