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### IN THE SUPREME COURT OF THE STATE OF HAWAI # I
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IN THE MATTER OF THE ISHIDA-WAIAKAMILO LEGACY TRUST DATED JUNE 27, 2006

AND
IN THE MATTER OF THE ISHIDA-WINANT LEGACY TRUST DATED JUNE 27, 2006

SCWC-13-0000449
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0000449, CAAP-13-0000450; T. NOS. 12-1-0080 and 12-1-0081)

JUNE 15, 2017 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J. This case arises from the administration of two irrevocable trusts established by Richard and Rachel Ishida: the Ishida-Waiakamilo Legacy Trust (Waiakamilo Trust), and the Electronically Filed Supreme Court SCWC-13-0000449 15-JUN-2017 08:28 AM*** FOR PUBLICATION IN WE ST’S HAWAI # I REPORTS AND PACIFI C REPORTER ***


### Ishida-Winant Legacy Trust (Winant Trust) (collectively, “the Trusts”). The Trusts name as beneficiaries the Ishidas’ daughters Jeri S. Wilson (Jeri) and Juney M. Ishida (Juney), and their granddaughter Kauialohaokalani R. Wilson (Kaui), but they expressly exclude the Ishidas’ third daughter, Richardeen Kimura (Deenie). Six years after the creation of the Trusts, the Ishidas filed petitions in Probate Court of the First Circuit (probate court) requesting rescission of both Trusts. The Ishidas alleged that they never intended to make the Trusts irrevocable, and that Jeri had wrongfully transferred ownership of property from the Waiakamilo Trust to herself. Jeri and Juney opposed the petitions.

The probate court found that the transfer of property to Jeri had violated the terms of the Waiakamilo Trust, ordering the property returned to the Trust; it declined to rescind or reform the Trusts. The Ishidas appealed to the Intermediate Court of Appeals (ICA), which affirmed the probate court’s denial of their petitions.

The Ishidas’ Application for Writ of Certiorari presents two issues to this court: 1) whether that the probate court’s failure to return the Waiakamilo Trust property to the Ishidas was an abuse of discretion in light of alleged wrongdoing by Jeri, and 2) whether the ICA improperly discounted the evidentiary value of the Ishidas’ petitions, which were verified

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### pursuant to Hawai # i Probate Rules (HPR) Rule 5(a).

First, we hold that the probate court did not err in denying the Ishidas’ requested relief, as the matter was within the court’s equitable discretion. Second, we affirm the ICA’s holding that the probate court was not required to accept the Ishidas’ petitions at face value, and in doing so we clarify the status of HPR Rule 5(a) statements in relation to other types of testimonial evidence. I. Background

The Ishidas hired an attorney to draft documents creating the Trusts, which they executed on June 27, 2006. The Ishidas settled each Trust with a single residential and/or commercial property. Jeri and Juney were named as trustee for the Waiakamilo Trust and Winant Trust, respectively. The Waiakamilo Trust designates Jeri as beneficiary, with full ownership of the Trust’s property passing to Jeri’s daughter Kaui upon Jeri’s death. The Winant Trust provides that its property will be distributed to Juney as beneficiary upon the death of the Ishidas, with full ownership passing to Kaui upon Juney’s death. The Trusts are irrevocable, with both including the following provision:
Secti on 3. Irre vocab le Trust

Our T rust is ir revoc able. Exc ept a s exp ressl y her ein provi ded t o the cont rary, no T rusto r or any o ther perso n sha ll ha ve an y rig ht or powe r to alter , ame nd, or in any manne r wha tsoev er mo dify any o f the provi sions here of.



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### Additionally, both the Waiakamilo Trust and the Winant Trust specifically exclude the Ishidas’ third daughter, Deenie, with both Trusts including the following provision:

c. Ex clusi ons We he reby exclu de RI CHARD EEN R . KIM URA a nd su ch perso n’s d escen dants as b enefi ciari es un der o ur Tr ust Agree ment, incl udingwith out l imita tion for t he purpo ses o f int estat e suc cessi on. For t he pu rpose s of our T rust Agree ment, all exclu ded p erson s sha ll be treat ed as havi ng di ed pr ior t o the exec ution of o ur Trust Agre ement
. 

### On March 28, 2007, Jeri and the Ishidas executed a series of deeds, transferring ownership of the Waiakamilo Trust property (Waiakamilo Property) from the trust to Jeri personally.

On May 4, 2012, the Ishidas filed in probate court a Petition for Rescission of Warranty Deed, Imposition of Constructive Trust and an Order for Disgorgement related to the Waiakamilo Trust (Waiakamilo Petition), and a Petition for Reformation of Trust and/or Order Setting Aside the Ishida-Winant Trust (Winant Petition). The Ishidas alleged that, although they had asked their attorney to make simple wills and revocable trusts as part of their estate planning, their attorney went against their wishes and designed the Waiakamilo and Winant Trusts to be irrevocable. The Ishidas further claimed that Jeri had schemed with their attorney to transfer the Waiakamilo Property to Jeri personally in the March 28, 2007 deeds. Accordingly, the Ishidas asked the probate court to rescind the

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### deed transferring the Waiakamilo Property to Jeri, and to set aside both Trusts and restore ownership of Trust properties to the Ishidas. In apparent compliance with HPR Rule 5(a), both 1 

### petitions included the following text above the Ishidas’ signatures:

THE U NDERS IGNEDUNDE RSTAN DS TH AT TH IS DO CUMEN T IS DEEME D TO INCLU DE ANOATH , AFF IRMAT ION, OR ST ATEME NT TO TH E EFF ECT T HAT I TS RE PRESE NTATI ONS A RE TR UE AS FAR AS TH E UND ERSIG NED K NOWS OR IS INFO RMED, AND PENAL TIES FOR P ERJUR Y MAY FOLL OW DE LIBERATE F ALSIF ICATI ON. 

### Jeri and Juney (Respondents) disputed the Ishidas’ account of the Trusts’ creation, claiming that the Ishidas intentionally made the trusts irrevocable because they had disinherited Deenie. Respondents further contended that Deenie

HPR R ule 5 (199 9) pr ovide d: 1
Rule 5. SI GNINGOF P LEADI NGS.

(a) V erifi catio n of Plead ings; Affi davit s. Al l plead ings (othe r tha n tho se si gned by a party ’s attor ney) shall incl ude a stat ement at t he en d and befor e the sign ature of t he pe rson prese ntingthe plead ing t o the effe ct th at th e per son u nders tands that the d ocume nt is deem ed to incl ude a n oat h, affir matio n, or stat ement to t he ef fect that its repre senta tions are true as fa r as the p erson execu ting or fi ling it kn ows o r is infor med, and t hat penal ties for p erjur y mayfoll ow de liber ate falsi ficat ion. Such a st ateme nt sh all b e acc eptedin lieu of an affi davit as t o the fact s sta ted i n the plead ing. The signa ture of an appl icant in i nform al proce eding s sha ll be nota rized
. If a plead ing r equir es co nside ratio n of facts not a ppear ing o f rec ord o r ver ifiedas p rovid ed ab ove, it sh all b e sup porte d by affid avit, sign ed bythe perso n hav ing k nowle dge o f the fact s andcomp etent to testi fy. An at torne y maysubm it a decla ratio n in lieu of an affi davit to s uppor t fac ts ou tside of t he recor d. 

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### had recently reconciled with their parents, and that she was behind the petitions. Respondents also alleged that the transfer of property from the Waiakamilo Trust to Jeri personally had been done with the Ishidas’ knowledge in order to avoid “issues” raised by the Ishidas’ accountant. Respondents concluded that “further discovery into the Ishidas’ allegations is required as they raise issues of material fact,” asking that both petitions be assigned to the civil trials calendar pursuant to HPR Rule 20(a). 2 

### The Ishidas replied to Respondents’ objections, asserting, “[w]hile the allegations against Deenie are absolutely untrue, they are irrelevant and the Ishidas will not address them.” The Ishidas urged the probate court to grant their petitions forthwith, arguing that “the equities of the case, as well as public policy” required immediate relief. The Ishidas opposed discovery or otherwise prolonging the proceedings in court, asserting that “the Court has all the information it needs to declare the transfer void and return the [Trust properties] to [their] rightful owners, the Ishidas.”

After a hearing, the probate court issued an order rescinding the March 28, 2007 deeds and restoring the Waiakamilo

HPR R ule 2 0(a) (1995 ) pro vides : 2 (a) A ssign ment. The cour t by writt en or der m ay re tain a con teste d mat ter o n the regu lar p robat e cal endar or may a ssign the conte sted matte r to the c ivil trial s calen dar o f the circ uit c ourt. 

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### Property to the Waiakamilo Trust, finding that the transfer had violated the terms of the Waiakamilo Trust. However, the probate court denied all other relief requested. The Ishidas filed petitions for reconsideration of the orders, which the probate court denied, and final judgment was entered for both petitions on May 2, 2013.

The Ishidas appealed to the ICA, arguing that the probate court erred in 1) failing to “right the injustice done to the Ishidas” by refusing to set aside the Trusts and restore the Properties to the Ishidas, and 2) failing to reform the Trusts because they “were a mistake.” Accordingly, the Ishidas urged the ICA to reform or set aside the Waiakamilo and Winant Trusts, or in the alternative, to impose constructive trusts on the Waiakamilo and Winant Trust properties.

In a published opinion, the ICA examined each of the Ishidas’ arguments in turn, finding that the Ishidas had failed to show by clear and convincing evidence circumstances warranting the reformation of the Trusts or other equitable relief. In re Ishida Waiakamilo Legacy Trust, 138 Hawai # i 98, 103–09, 377 P.3d 39, 44–50 (App. 2016). Regarding the evidence presented by the Ishidas, ICA stated:

On ap peal, the Ishid as re fer t o “co mpell ing e viden ce” and “ the c lear testi mony of th e Set tlors rega rding their own inten t andthe mista ke th at wa s mad e,” i n appar ent r efere nce t o the Ishi das’ signa tures on t he Waiak amilo Peti tion follo wing a sta temen t tha t:



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THE U NDERS IGNEDUNDE RSTAN DS TH AT TH IS DO CUMEN T IS DE EMED TO IN CLUDE AN O ATH, AFFIRMATIO N, OR STATE MENT TO TH E EFF ECT T HAT R EPRES ENTAT IONS ARE TRUE AS FA R AS THE U NDERS IGNEDKNOW S OR IS INFORMED, AND P ENALT IES F OR PE RJURY MAY FOLLO W DELIB ERATE D FAL SIFIC ATION
.

. . . .
As se t for th in HPR Rule 5(a), this atte stati on is accep ted i n lie u of a swo rn af fidav it to the same effec t, i. e., t hat t he in forma tion conta ined there in is tr ue as far as th e aff iant knows or i s inf ormed , and t hus s atisf ied t he re quire ments of t he ru le. I t is not, howev er, i denti cal i n eve ry wa y to testi mony that has b een s ubjec t to cross -exam inati on, o r a s worn affid avit, or a decl arati on ma de un der p enalt y of law, that speci fied factu al st ateme nts a re tr ue an d corre ct. It is with in th e pro vince of t he tr ial c ourt to de termi ne th e cre dibil ity o f a w itnes s andthe weigh t to be gi ven t o a w itnes s’s t estim ony. See, e.g., Tama shiro v. C ontro l Spe ciali st, I nc., 97 Hawai # i 86, 92, 34 P. 3d 16 , 22 (2001 ). W ritte n testi mony that couldbe b ased upon limit ed me mory or knowl edge, or i nform ation and belie f, ra ther than perso nal k nowle dge, parti cular ly te stimo ny th at purpo rts t o ref lect the j oint recol lecti on an d int ent of tw o peo ple, witho ut di stinc tion, migh t rea sonab ly be vi ewed as le ss re liabl e or less convi ncingthan other form s of evide nce. 

### Id. at 106–07, 377 P.3d at 47–48.

The ICA also determined that the creation of the irrevocable trusts was not “so inherently improvident and unreasonable” that the probate court was required to infer that it was the product of delusion or mental infirmity. Id. at 109, 377 P.3d at 50 (citing Love v. Love, 17 Haw. 206, 215 (1905)). Accordingly, the ICA concluded that the probate court did not abuse its discretion when it declined to impose a constructive trust on the Trust properties or otherwise return them to the

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### Ishidas. Id. The ICA thus affirmed the probate court’s judgments. Id. II. Standards of Review
A. Equitable Relief

“The relief granted by a court in equity is discretionary and will not be overturned on review unless the circuit court abused its discretion by issuing a decision that clearly exceeds the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of the appellant.” Aickin v. Ocean View Invs. Co., Inc., 84 Hawai # i 447, 453, 935 P.2d 992, 998 (1997) (internal quotation marks, citation, and brackets omitted).
B. Interpretation of Court Rules

The interpretation of a court rule is reviewed de novo. Sierra Club v. Dep’t of Transp., 120 Hawai # i 181, 197, 202 P.3d 1226, 1242 (2009). III. Discussion

In their Application for Writ of Certiorari, the Ishidas argue that the ICA erred in 1) holding that the probate court did not abuse its discretion when it declined to impose a constructive trust on the Waiakamilo Property or otherwise return it to the Ishidas; and 2) concluding that the Ishidas’ statements in their petitions were “less reliable and less convincing,” even though those statements were verified pursuant to HPR Rule 5(a).

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### A. Denial of Equitable Relief

The ICA did not err in finding that the Ishidas failed to produce clear and convincing evidence that the Trusts were the result of mistake or other grounds justifying equitable relief.

“A constructive trust arises where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” Kam Oi Lee v. Fong Wong, 57 Haw. 137, 139, 552 P.2d 635, 637 (1976) (citation omitted). Hawai # i courts will impose a constructive trust “where the evidence is clear and convincing” that the grantee will be unjustly enriched if allowed to retain the entire property. Maria v. Freitas, 73 Haw. 266, 274, 832 P.2d 259, 264 (citation omitted). The Restatement (Third) of Property explains the rationale for this high standard:

When a don ative docu ment is un ambig uous, evid ence sugge stingthat the terms of t he do cumen t var y fro m inten tion is in heren tly s uspec t but poss ibly corre ct. .
. . Onlyhigh -safe guardallo wance of extri nsic evide nce a chiev es th e pri mary objec tive of givin g eff ect t o the dono r’s i ntent ion. 

### Restatement (Third) of Property § 12.1 cmt. b (Am. Law Inst. 2003) (emphasis added).

Here, the Waiakamilo Trust is unambiguous, stating in bold type that it is an irrevocable trust. The Ishidas thus had to offer clear and convincing evidence that Jeri would be unjustly enriched if the Waiakamilo Trust remained unaltered.

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### They failed to do so. The Waiakamilo Petition made a colorable argument that the Ishidas did not intend to make the Waiakamilo Trust irrevocable, but Respondents made an equally plausible argument that the Ishidas simply changed their minds regarding the Trusts as a result of their alleged reconciliation with Deenie. Moreover, the Ishidas provided little evidence to support their arguments beyond the bare assertions in the Waiakamilo Petition, and they opposed discovery or assignment of their case to the civil trials calendar–-steps which might have allowed them to adduce additional evidence in support of their position. Faced with two competing stories and scant evidence, it was well within the probate court’s discretion to deny equitable relief. See, e.g., Aickin 84 Hawai # i at 449 n.1, 935 P.2d at 994 n.1 (“Equity is a discretionary remedy; the trial court was not obligated to grant it.”). Thus, the ICA did not err in affirming the probate court’s denial of the Ishidas’ request to impose a constructive trust upon the Waiakamilo Property.
B. Verification

The Ishidas argue that the ICA erred “because it should have treated the Ishidas’ account of their intent and experiences as personal, and thus constituted personal knowledge.” In support of this contention, the Ishidas cite HPR Rule 5(a), arguing that pursuant to this rule their petitions “had the

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### effect of an affidavit.” The Ishidas also assert that the ICA displayed “uncritical reliance” on similarly verified statements from Respondents’ briefs, arguing that there is “no principled reason to treat the Ishidas’ and Jeri/Juney’s Rule 5(a) statements differently, as the ICA did.” Lastly, the Ishidas 3 

### argue that the ICA’s position “will undermine the Rule 5(a) verification” routinely relied upon in probate filings.

We agree with the Ishidas’ argument to the extent that a portion of the ICA’s opinion does have the potential to “undermine Rule 5(a) verification.” Referring to the verification language in the Ishidas’ petitions, the ICA stated: 4

It is not, howe ver, ident ical in ev ery w ay to testi mony that has b een s ubjec t to cross -exam inati on, or a sworn affi davit , or a dec larat ion m ade u nder penal ty of law, that spec ifiedfact ual s tatem ents are true and c orrec t
. 

### In re Ishida Waiakamilo Legacy Trust, 138 Hawai # i at 107, 377 P.3d at 48 (emphasis in original).

To the extent that this sentence suggests that a statement verified pursuant to HPR Rule 5(a) has less evidentiary

Altho ugh t he IC A ref ers t o cla ims m ade i n Res ponde nts’ verif ied 3 state ments , it does not m ake f indin gs re gardi ng th e ver acityof t hese claim s. See, e.g., In r e Ish ida W aiaka milo Legac y Tru st, 1 38 Ha wai # i at 108, 377 P .3d at 49 (“in her objec tion, Jeri aver red t hat .
. . .”)

As no ted a bove, the follo wing text basedon H PR Ru le 5( a) is 4 print ed ab ove t he si gnatu re bl ock o n the Waia kamil o andWina nt Pe titio ns:

THE U NDERS IGNEDUNDE RSTAN DS TH AT TH IS DO CUMEN T IS DEEME D TO INCLU DE ANOATH , AFF IRMAT ION, OR ST ATEME NT TO TH E EFF ECT T HAT I TS RE PRESE NTATI ONS A RE TR UE AS FAR AS TH E UND ERSIG NED K NOWS OR IS INFO RMED, AND PENAL TIES FOR P ERJUR Y MAY FOLL OW DE LIBERATE F ALSIF ICATI ON. 

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### weight than a sworn affidavit, it is in error. HPR Rule 5(a) provides that a verified statement “shall be accepted in lieu of an affidavit as to the facts stated in the document.” A court 5 

### must thus accord a statement verified pursuant to HPR 5(a) the same evidentiary weight it would a sworn affidavit of identical
content. However, on the whole the ICA’s analysis is correct in its affirmance of the probate court’s judgments. The ICA did not display “uncritical reliance” on Jeri and Juney’s verified petitions, but rather reviewed the record in accordance with the relevant standard. As stated in the ICA’s opinion:

We co nside r the Ishi das’ verif icati on in the conte xt of th e cle ar an d con vinci ng ev idenc e sta ndard appli cable to t heir reque st fo r equ itabl e rel ief f rom the u nambi guous term s of the W aiaka milo Trust
. 

### In re Ishida Waiakamilo Legacy Trust, 138 Hawai # i at 107, 377 P.3d at 48.

The ICA correctly noted that “it is within the province of the trial court to determine the credibility of a witness and the weight to be given to a witness’s testimony.” Id. Whether or not the Ishidas’ statements in their petitions constituted

As no ted b y the comm entar y to HPR R ule 5 : 5

Becau se th e Reg istra r pro cesse s a l arge numbe r of infor mal a pplic ation s fil ed bypro se ap plica nts, it is importa nt to prov ide a n eas y mec hanis m for the Regis trar to de termi ne th at th e app lican t is who h e or she c laims to b e. Anota rizedsign ature give s the Regis trar this proof with out a ddingany signi fican t cost to th e pro bate proce ss. 

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### clear and convincing evidence was a question clearly within the probate court’s discretion. The ICA carefully considered the record, and it correctly concluded that the probate court did not abuse its discretion in declining to impose a constructive trust or other otherwise modify the Trusts in light of the evidentiary burden the Ishidas were required to satisfy. IV. Conclusion For the foregoing reasons, the ICA did not err in affirming the probate court’s judgment. Thus, the ICA’s September 6, 2016 judgment on appeal is affirmed.
Margery S. Bronster, Rex Y. Fujichaku, and Angela K.H. Jacso for petitioners Michael A. Lilly and Valerie M. Kato for respondents /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna /s/ Richard W. Pollack /s/ Michael D. Wilson

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