IN THE MATTER OF THE ESTATE OF ETHEL CAMACHO, Deceased.
BEVERLY J. CALKOVSKY, Respondent- Appellant. IN THE MATTER OF THE ETHEL CAMACHO LIVING TRUST DATED MARCH 3, 2008. NEPHI DANIEL IOANE CAMACHO, Petitioner-Appellee,
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (PROBATE NO.
08-1-0192, TRUST NO. 08-1-0094)
Van Name Esser, Ted H.S. Hong, and Darwin L.D. Ching for
Carroll S. Taylor (Taylor, Leong & Chee) and Michael D.
Rudy and Cheryl R. Ng (MacDonald Rudy Byrns O'Neill &
Yamauchi) for Petitioner-Appellee.
NAKAMURA, CHIEF JUDGE, AND REIFURTH AND GINOZA, JJ.
NAKAMURA, CHIEF JUDGE
to her death in 2008, Ethel Caraacho (Ethel) executed wills
in 1998, 2000, and 2004. The 1998 will left Ethel's
entire estate to her two grandsons, Nephi Daniel Ioane
Camacho (Nephi) and Moses Antonio Ioane Camacho (Moses), and
nominated Nephi as the personal representative, after
Ethel's son, the original sole beneficiary of the will,
predeceased her in 1999. The 2000 and 2004 wills left
Ethel's entire estate to her daughter, Beverly Calkovsky
(Beverly), and nominated Beverly as the personal
representative. After Ethel's death, Nephi and Beverly
engaged in a will contest, with Nephi contending that the
1998 will was Ethel's last validly executed will and
Beverly contending that either the 2000 will or the 2004 will
was the last validly executed will. After a trial, the jury
found that the 2000 will was Ethel's last validly
had retained lawyers who represented him on a contingency fee
basis, and because Nephi was unsuccessful in his will
contest, he apparently was not obligated to pay any
attorneys' fees to his lawyers. However, it appears that
Nephi was obligated to pay for litigation costs. Nephi filed
a motion for attorneys' fees and costs pursuant Hawaii
Revised Statutes (HRS) § 560:3-720 (2006), which
If any personal representative or person nominated as
personal representative defends or prosecutes any proceeding
in good faith, whether successful or not that person is
entitled to receive from the estate that person's
necessary expenses and disbursements including reasonable
attorneys' fees incurred.
requested a total of $345, 736.78 in attorneys' fees
(including general excise tax) and $42, 754.09 in costs to be
paid by Ethel's estate, which was valued at approximately
$1.5 million at the time of her death. The Circuit Court of
the First Circuit (Circuit Court)' granted Nephi's
entire request for attorneys' fees and costs, and it
ordered Ethel's estate to pay Nephi's lawyers a total
of $388, 490.87 in legal fees, general excise tax, and costs.
appeals from the "First Amended Final Judgment"
(Amended Judgment), which entered judgment in favor of Nephi
in the amount of $388, 490.87 for attorneys' fees and
costs. The principal question presented by this appeal is
whether under HRS § 560:3-720, Nephi was entitled to
recover attorneys' fees from Ethel's estate where
Nephi was not obligated to pay his attorneys any legal fees
because of their contingency fee agreement. As explained
below, we conclude that the answer to this question is
"no." We therefore vacate the Amended Judgment to
the extent that it entered judgment in favor of Nephi and
against Ethel's estate for attorneys' fees.
appears that Nephi was obligated to pay for costs he
incurred. We conclude that under HRS § 560:3-720, Nephi
was entitled to an award of his necessary costs. However, the
record is insufficient for us to determine whether all the
costs requested by Nephi were necessary, and we remand the
case for further proceedings on this issue.
outset, we note that Respondent-Appellant Beverly did not
include the trial transcripts as part of the record on
appeal. This Background Section is therefore based on
information contained in the pleadings filed by the parties
and the non-trial transcripts included in the record.
to her death in 2008, Ethel owned and lived on real property
located on 8th Avenue in Honolulu (the Property). The
Property contained three dwellings, had a property tax
assessment value of $1, 463, 800 in 2008, and was the primary
asset of Ethel's estate.
in 1998, Nephi and his family lived in one of the dwellings
on the Property. On November 2, 1998, Camacho executed a
"Last Will and Testament of Ethel Camacho" (1998
Will). The 1998 Will nominated Ethel's son, John F.
Camacho, Jr. (John), as personal representative and
bequeathed Ethel's entire estate to John. The 1998 Will
also provided that if John predeceased Ethel, Nephi would be
nominated as personal representative, and Ethel's estate
would pass equally to Nephi and Moses. The 1998 Will provided
no bequest to Ethel's daughter, Beverly, and it stated,
"I have intentionally not provided for my other child,
Beverly Joyce Calkovsky, as she has been adequately been
[sic] provided for during my lifetime." John passed away
in 1999, and therefore, under the 1998 Will, Nephi became the
person nominated as personal representative, and Nephi and
Moses became the devisees of Ethel's estate.
2000, Nephi and his family moved from the Property. Beverly
and Nephi disagree over the reason for Nephi's moving.
Beverly asserts that Ethel had a falling out with Nephi and
his wife and that Ethel asked them to leave. Nephi asserts
that after signing the 1998 Will, Ethel began exhibiting
increasing signs of dementia in 1999 and early 2000,
including the delusion that Nephi and his wife were
attempting to poison Ethel, which prompted Nephi and his
family to leave the Property in 2000.
February 2000, Ethel tore up the 1998 Will and signed a
notarized affidavit prepared by her lawyer, Lester Oshiro,
stating that she intended to die intestate.
13, 2000, Ethel executed a "Last Will and Testament of
Ethel Camacho" (2000 Will), which revoked all prior
wills. The 2000 Will nominated Beverly as personal
representative and bequeathed Ethel's entire estate to
Beverly. On April 1, 2004, Ethel executed a "Last Will
and Testament of Ethel Camacho" (2004 Will), which
revoked all prior wills. The 2004 Will, like the 2000 Will,
nominated Beverly as personal representative and bequeathed
Ethel's entire estate to Beverly.
March 3, 2008, Beverly, using a power of attorney granted by
Ethel in 2004, created a revocable living trust for Ethel
(Ethel's Trust), and transferred the Property into
Ethel's Trust. Ethel's Trust named Beverly as Trustee
and provided that upon Ethel's death, the trust estate
would be distributed to Beverly. Ethel passed away on March
after Ethel's death, Nephi filed an "Application for
Informal Probate of Will and for Informal Appointment of
Personal Representative" (Informal Probate Application).
Nephi based his claim for priority of appointment as personal
representative on his nomination in Ethel's 1998 Will and
his status as a devisee under that will and an heir of Ethel.
In the Informal Probate Application, Nephi stated that
"[t]o the best of [his] knowledge, " the 1998 Will
was validly executed and that "[a]fter exercise of
reasonable diligence, " he believed the 1998 Will was
Ethel's last will and had not been revoked. On April 11,
2008, the Probate Court Registrar informally appointed Nephi
as personal representative of Ethel's estate. Nephi sent
notice of his application and appointment as personal
representative to Beverly.
receiving this notice, Beverly filed objections to
Nephi's application and appointment, citing Ethel's
2004 Will, which Beverly asserted had "superseded"
the 1998 Will. Beverly also cited Ethel's Trust.
subsequently filed a petition to set aside and terminate
Nephi's appointment as personal representative and to
have the case transferred from informal probate to formal
probate. Nephi and Moses filed a response to Beverly's
petition. Their response alleged, among other things, that
"Nephi Camacho observed in year 2000 that Ethel had
developed profound symptoms of dementia which included
paranoia, confusion, delusional thought which included the
belief that neighbors were trying to kill her" and that
"[d]uring the year 2000, Nephi was told by various heath
care providers for Ethel that she was suffering from
progressive dementia." Nephi and Moses also alleged that
Ethel lacked testamentary capacity when she executed the 2004
Will; that Beverly exercised undue influence to cause Ethel
to execute the 2004 Will; that Ethel was mistaken as to the
content and meaning of the 2004 Will; and that Ethel lacked
the capacity to contract and grant Beverly a power of
attorney. Nephi and Moses requested that the case be
transferred to formal probate; that a jury trial be held to
resolve contested matters; that Ethel's 1998 Will be
admitted to probate; and that Ethel's 2004 Will, the
power of attorney granted to Beverly, Ethel's Trust, and
the transfer of the Property into Ethel's Trust be
declared null and void.
Circuit Court found that Beverly's petition constituted a
contested matter and transferred it from the regular probate
calendar to the civil trials calendar. The case was set for a
jury trial. Prior to trial, Moses was dismissed as a party
from the case.
petition and her opposition to Nephi's appointment as
personal representative had been based on Ethel's 2004
Will. However, before the initially scheduled trial date,
Beverly disclosed that Ethel had executed the 2000 Will. It
was also disclosed that prior to executing the 2000 Will,
Ethel had torn up the ...