NOT FOR PUBLICATION

NO. 25398

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI`I

THE ESTATE OF EDITH I. KAM,
aka EDITH ING KAM, DECEASED

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(P. NO. 00-1-0281)

MEMORANDUM OPINION
(By: Burns, C.J., Watanabe and Foley, JJ.)

(1) the September 13, 2002 "Final Judgment Re Order Denying Petition to Vacate Previous Order for Probate of Will, to Redetermine Heirship, for Formal Probate of Will and for Formal Appointment of Personal Representative Filed November 2, 2000, Filed January 2, 2002";

(2) the September 16, 2002 "Final Judgment Re Order Granting Petition for Instructions Filed October 11, 2000, Filed January 2, 2002"; and

(3) the September 13, 2002 "Final Judgment Re Order Denying Petition for Allowance of and to Enforce and Obtain Payment on Creditors' Claims Filed September 11, 2000, Filed November 8, 2000."

Accordingly, Abastillas argues that Judge Hirai erred when she granted Cedric[ Kam]'s petition for instructions and denied her petition to redetermine heirship, because:

2. [In FC-AA No. 96-0003,] Judge [John C.] Bryant lacked personal jurisdiction over Edith [Ing Kam].

4. For these reasons, no "finding" which Judge Bryant made was res judicata.

Judge Hirai made these errors when she denied Abastillas' petition on January 2, 2002. Abastillas called these errors to Judge Hirai's attention in her objections to Cedric's petition for instructions and attached memorandum and in her response to Cedric's objection to her petition to redetermine heirship and her supporting memorandum, as just cited.

Regarding judgment (3), Appellants specifically challenge Judge Kevin S. C. Chang's October 20, 2000 oral decision and corresponding November 8, 2000 "Order Denying Petition for Allowance of and to Enforce and Obtain Payment on Creditors' Claims Filed September 11, 2000," and assert the following points of error:

1. The probate court erred when it did not follow H.R.S. [Hawaii Revised Statutes] § 560:3-804 and Probate Rule 63 by holding that Creditors should have filed all their documentary proof with their petition. The probate court made this error at the October 20 hearing, when, as earlier quoted, it stated that it would disregard Creditors' reply as "untimely" because the exhibits attached to the reply should have been part of Creditors' petition. . . .

We vacate the three final judgments appealed from. We remand for further proceedings consistent with this opinion.

BACKGROUND

A.     FC-AA No. 96-0003 - Family Court Protection Proceedings

Hawaii Revised Statues (HRS) Chapter 346 (1993) states, in relevant part, as follows:

[PART X.] DEPENDENT ADULT PROTECTIVE SERVICES

In taking this action, the legislature intends to place the fewest possible restrictions on personal liberty and to permit the exercise of constitutional rights by adults consistent with protection from abuse, neglect, and exploitation.

Abuse occurs where:

(5) There has been a failure to exercise that degree of care toward a dependent adult which a reasonable person with the responsibility of a caregiver would exercise, including, but not limited to, failure to:

(E) Protect against acts of abuse by third parties;

(7) There is financial and economic exploitation. For the purpose of this part, "financial and economic exploitation" means the wrongful or negligent taking, withholding, misappropriation, or use of a dependent adult's money, real property, or personal property. "Financial and economic exploitation" can include but is not limited to:

(B)     The unauthorized taking of personal assets;

(D)     The intentional or negligent failure to effectively use a dependent adult's income and assets for the necessities required
           for the person's support and maintenance.

"Capacity" means the ability to understand and appreciate the nature and consequences of making decisions concerning one's person or to communicate such decisions.

"Department" means the department of human services and its authorized representatives.

. . . .

"Party" means those persons, care organizations, or care facilities entitled to notice of proceedings under sections 346-237 and 346-238, including any state department or agency that is providing services and treatment to a dependent adult in accordance with a protective services plan.

[§ 346-223] Jurisdiction; venue. The family court shall have jurisdiction in protective proceedings under this part concerning any dependent adult who was or is found within the circuit at the time such facts and circumstances occurred, were discovered, or were reported to the department, which constitute the basis for a finding that the person has been abused and is threatened with imminent abuse; provided that the protective proceedings under this part are not exclusive and shall not preclude the use of any other criminal, civil, or administrative remedy. The protective proceedings under this part shall be held in the judicial circuit in which the dependent adult resides at the time of the filing of the petition or in which the dependent adult has assets.

. . . .

. . . .

. . . .

(b) A finding of probable cause may be based in whole or in part upon hearsay evidence when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses who will be able to testify to facts from personal knowledge.

. . . .

. . . .

(d)     The court may also make orders as may be appropriate to third persons, including temporary restraining orders, enjoining them from:

. . . .

(2)     Abusing the dependent adult;

(5)     Selling, removing, or otherwise disposing of the dependent adult's personal property;

(7)     Negotiating any instruments payable to the dependent adult;

(9)     Exercising any powers on behalf of the dependent adult by representatives of the department, any court-appointed guardian or
          guardian ad litem or any official acting on their behalf;

(e)  Court orders under section 346-232 and this section may be obtained upon oral or written application by the department, without
 notice and without a hearing. Any oral application shall be reduced to writing within twenty-four hours. The court may issue its
order orally, provided that it shall reduce the order to writing as soon as possible thereafter and in any case not later than
twenty-four hours after the court received the written application. Certified copies of the application and order shall be personally
served upon the dependent adult and any other person or entity affected by the order together with the notice of the order to
show cause hearing in section 346-232.

. . . .

. . . .

[§ 346-238] Service. (a) Service of the notice shall be made by delivery of a copy thereof together with a certified copy of the petition to each person or entity to be given notice either by personal service, by certified mail, return receipt requested and addressed to the last known address, by publication, or by other means authorized by the court. Upon a showing of good cause, the court may waive notice to any party except the dependent adult.

[§ 346-239] Required findings concerning postponed hearings. Except as otherwise provided, no hearing shall be delayed upon the grounds that a party other than the dependent adult is not present at the hearing or has not been served with a copy of the order for immediate protection or the petition, where reasonable efforts have been made to effect service and it would be detrimental to the dependent adult to postpone the proceedings until service can be made. Whenever a hearing is delayed or postponed under this section, the court shall enter a finding that it will not be detrimental to the dependent adult and shall also specify what additional measures shall be undertaken to effect service.

[§ 346-240] Adjudicatory hearing. (a) When a petition has been filed, the court shall set a return date hearing to be held within thirty days of the filing of the petition. On the return date, the parties personally or through counsel may stipulate to the entry or continuance of the orders as the court deems to be in the best interests of the dependent adult, and the court shall set the case for an adjudicatory hearing as soon as is practical.

(c) If facts sufficient to sustain the petition are established in court, or are stipulated to by all parties, the court shall enter an order finding that the dependent adult has been abused and threatened with imminent abuse and shall state the grounds for the finding. The court shall also make a finding concerning the capacity of the dependent adult to effectively make decisions concerning personal needs or property or both. If the capacity of the dependent adult is at issue, the court shall require that the dependent adult be examined by a psychiatrist or other physician who is skilled in evaluating the particular area in which the dependent adult is alleged to lack capacity before making any finding that the dependent adult lacks capacity. If there is no finding that the dependent adult lacks capacity to make such decisions and if the dependent adult does not give consent, the court shall not have authority to proceed further and the court shall dismiss the case.

(e) If facts sufficient to sustain the petition under this part are not established, the court shall dismiss the petition and shall state the grounds for dismissal.

§ 346-241 Disposition. (a) The department shall prepare a proposed protective order and a written protective services plan and submit copies to the court and each of the parties or their counsel at least seven days prior to the disposition hearing.

(e) The court shall conduct a disposition hearing concerning the terms and conditions set forth in the proposed protective order and proposed protective services plan unless each of the appropriate parties accepts the order and plan, in which event, the court may approve the order and plan without a hearing.

3.     The following information concerns the subject:

        . . . .

        . . . .

5. The subject has been abused and is threatened with imminent abuse within the meaning of § 346-222, [HRS], unless immediate action is taken, by reason of the following facts:

b. On April 17, 1996, Cedric Kam [(Cedric)], [Mrs.] Kam's son, who lives on the Mainland told Petitioner that he had been concerned about his mother's inability to make decisions in her best interest. He stated that his mother was elderly and could no longer make good decisions for herself as she was no longer rational. Further, Cedric . . . was concerned that . . . Abastillas, her attorney's paralegal, had convinced his mother that she should be adopted by her. In addition, he was concerned that . . . Abastillas was representing herself as Mrs. Kam's daughter, her lawyer, and her medical doctor.

d. Cedric . . . stated that Mrs. Kam initiated a law suit against the security companies who installed a security system in her home because she claimed the system did not prevent people from entering her home and poisoning her. She also initiated a law suit against the Kam Benevolent Society to remove its non-profit status because it refused to assist with caring for her 64 year old son Edward [Kam (Edward or Eddie)], who has been diagnosed with a mental illness.

f. On April 17, 1996, Yvonne Bannister, who has known Edith . . . for over 16 years as a fellow Jehovah's Witness, expressed concern that Mrs. Kam has been forgetful and not able to remember things. She was also concerned that during the past few months Mrs. Kam has been completely dominated by . . . Abastillas. She questions . . . Abastillas' motives because . . . Abastillas has told Mrs. Kam she is studying the Bible to be a Jehovah's Witness, yet . . . Abastillas has not been participat[ing] in any of the Jehovah's Witness activities. She is further concerned that Mrs. Kam wants to adopt . . . Abastillas and that . . . Abastillas has been taking Mrs. Kam to look at real estate in Maui and in the Waialae Kahala area for the purpose of purchasing property so that they will be able to live together.

h. Dr. Ing has been increasingly concerned about Mrs. Kam's paranoia regarding people trying to tap her phone and secretly entering her home. Dr. Ing is also concerned that Mrs. Kam, at age 93, wants to adopt . . . Abastillas after only knowing her for a short time.

6. The subject does not consent to these proceedings and lacks the capacity to effectively make decisions concerning her person by reason of the following facts: According to Dr. Patel, Mrs. Kam suffers from dementia, Alzheimer's type, and [is] vulnerable to financial exploitation. ⁽²⁾

On June 14, 1996, Judge Bryant entered an Order for Immediate Protection stating, in relevant part, as follows:

1. The subject appears to be a dependent adult within the meaning of § 346-222, [HRS].

3. The subject does not consent to these proceedings and there is probable cause to believe that the subject lacks the capacity to make decisions concerning her person.

1. . . . Smith and . . . Abastillas are joined as parties to this action.

2. Until further order of the Court, . . . Smith and . . . Abastillas are enjoined and restrained from:

a.     Selling, removing, or otherwise disposing of the subject's personal property.

c.     Negotiating any instruments payable to the subject.

. . . .

a. That the Office of Public Guardian . . . be appointed Temporary Guardian for Edith . . . .

Dear Judge Bryant:

In [FC-AA No. 96-0003], we are due to appear before you at 10:00 a.m., on Monday, July 1, for the show cause hearing. However, there is a further development in this matter, of which I should inform the Court.

Dear Mrs. Nelson:

As I think you know, I have been [Mrs.] Kam's attorney since last June.

You appear to be involved in soliciting the recent action of Adult Protective Services in seeking court "protection" for Mrs. Kam. Now it appears that you have gone to the Honolulu Police Department and filed a "missing persons" report concerning Mrs. Kam. Mrs. Kam is not "missing." To the contrary (as I have informed Judge Bryant), she is simply taking appropriate steps not to return to Hawaii until the Adult Protective Services petition is dismissed for lack of jurisdiction.

In all, I believe that you -- and those participating with you -- face very serious liability for malicious prosecution. I therefore urge you to withdraw your missing persons complaint immediately - and, for that matter, the Adult Protective Services complaint as well. If you do not do so, Mrs. Kam will hold you responsible, to the extent the law allows, for all damages which she incurs, not least of which is continuing accrual of substantial attorney's fees, including the immediate retention of expensive criminal counsel, as she endeavors to protect her person and her property. If you perceive this letter as threat, let me assure you that it is no more (and no less) a threat to you than your actions are to Mrs. Kam.

Mrs. Kam remains the owner of her houses at Hokio and Lunahai. She is receiving substantial rental income for Hokio. She also receives social security. With ample cash reserves, she has no financial worries. She has not bought any new properties. And although she has broached the subject of adoption to my paralegal on several occasions, Dr. Abastillas has not fully consented to the idea and may not agree to it at all. Your apprehensions about "misappropriations" are therefore groundless.

On June 27, 1996, the State of Hawai`i filed a motion to compel disclosure and to disqualify counsel. In the affidavit attached to the motion, Deputy Attorney General Colleen L. Chun stated, in relevant part, as follows:

4. Affiant believes that . . . Smith has knowledge or is able to obtain information as to the whereabouts of [Mrs.] Kam;

6. The family of [Mrs.] Kam is extremely concerned about her safety and has filed a missing persons report with the Honolulu Police Department (HPD) due to Mrs. Kam's failure to return to Hawaii when she was supposed to on June 24, 1996.

8. On June 21, 1996, Affiant asked . . . Smith if he represents . . . Abastillas and [Mrs.] Kam in the above-captioned matter, to which he said he does, despite the apparent conflict.

(1) the Court lacks jurisdiction because subject [MRS.] KAM has not been served with process;

On July 3, 1996, Judge Bryant entered an "Order Granting Motion to Compel Disclosure and to Disqualify Counsel, and Denying Motion to Dissolve Order for Immediate Protection, Vacate Appointment of Temporary Guardian, and Dismiss Petition for Protection" stating, in relevant part, as follows:

1. . . . Smith's argument that since DHS has not effected service on Mrs. Kam, the case must be dismissed, is contrary to the requirements of HRS section 346-221. Nothing in the statute explicitly mandates dismissal if the subject adult has not [been] served. Furthermore, such a construction could lead to the result which is in opposition to the clear intent of the statutory scheme. Should dismissal be mandated where the dependent adult is not served after a certain amount of time and all orders for immediate protection issued under HRS section 346-231 be vacated, the court would be allowing the abuse to continue. One would only have to secrete the dependent adult away, avoid service, and wait until [the] court dismisses the case. Such a result is ludicrous and clearly not intended by the statutory scheme.

THE COURT FURTHER FINDS PROBABLE CAUSE THAT:

a. The adoption of . . . Abastillas by [Mrs.] Kam is another factor evidencing [Mrs.] Kam's lack of capacity to make responsible decisions.

2. The disputed issues raised by . . . Smith's motion will be addressed at the Order to Show Cause hearing or the Adjudicatory hearing, if any.

1. Smith's Motion to Dissolve Order for Immediate Protection, Vacate Appointment of Temporary Guardian, and Dismiss Petition for Protection is denied. . . .

3. The Motion to Disqualify Counsel regarding the representation of Mrs. Kam by . . . Smith is granted.

ARTICLE I
GENERAL PROVISIONS, DEFINITIONS AND
PROBATE JURISDICTION OF COURT

§ 560:1-102 Purposes; rule of construction. (a) This chapter shall be liberally construed and applied to promote its underlying purposes and policies.

(1)     To simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors and incapacitated
          persons;

(3)     To promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent's
          successors;

(5)     To make uniform the law among the various jurisdictions.

§ 560:1-201 General Definitions. Subject to additional definitions contained in the subsequent Articles which are applicable to specific Articles or Parts, and unless the context otherwise requires, in this chapter:

. . . .

. . . .

. . . .

PART 4. FORMAL TESTACY AND APPOINTMENT PROCEEDINGS

A petition for formal testacy proceedings may be filed without regard to whether the same or a conflicting will has been informally probated. If a personal representative has been previously appointed, a formal testacy proceeding may, but need not, involve a request for appointment of a successor personal representative. If a personal representative has not been previously appointed, a formal testacy proceeding shall request the appointment of a personal representative.

Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising the personal representative's power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of the personal representative's office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.

(1)     A claim based on a contract with the personal representative, within four months after performance by the personal
          representative is due; or

(2)     Any other claim, within the later of four months after it arises.

(1)     Any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate;

(3)     Collection of compensation for services rendered and reimbursement for expenses advanced by the personal
          representative or by the attorney or accountant for the personal representative of the estate.

§ 560:5-101 Definitions and use of terms. Unless otherwise apparent from the context, in this chapter:

(1)     "Guardianship proceeding" is a proceeding to appoint a guardian of the person for an incapacitated person or a minor;

(2)     "Incapacitated person" means any person who is impaired by reason of mental illness, mental deficiency, physical illness or
          disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that the person
          lacks sufficient understanding or capacity to make or communicate responsible decisions concerning one's person;

(3)     A "protective proceeding" is a proceeding under the provisions of section 560:5-401 to determine that a person cannot effectively
          manage or apply the person's estate to necessary ends, either because the person lacks the ability or is otherwise inconvenienced,
          or because the person is a minor, and to secure administration of the person's estate by a guardian of the property or other
          appropriate relief;

(4)     A "protected person" is a minor or other person for whom a guardian of the property has been appointed or other protective order
          has been made;

(2)     If entitled to custody of the guardian's ward the guardian shall make provision for the care, comfort and maintenance of the
         guardian's ward and, whenever appropriate, arrange for the ward's training and education. Without regard to custodial
         rights of the ward's person, the guardian shall take reasonable care of the guardian's ward's clothing, furniture, vehicles and
         other personal effects and commence protective proceedings if other property of the guardian's ward is in need of
         protection.

(5)     The guardian shall report the condition of the guardian's ward and of the estate which has been subject to the guardian's
          possession or control, as required by the family court or family court rule.

(6)     If a guardian of the property has been appointed, all of the ward's estate received by the guardian of the person in excess
         of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the
         guardian of the property for management as provided in this chapter, and the guardian of the person must account to the
         guardian of the property for funds expended.

(b)     Any guardian of the person of one for whom a guardian of the property also has been appointed shall control the custody
         and care of the ward, and is entitled to receive reasonable sums for the guardian of the person's services and for room and
         board furnished to the ward as agreed upon between the guardian of the person and the guardian of the property, provided
         the amounts agreed upon are reasonable under the circumstances. The guardian of the person may request the guardian of
         the property to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.

PART 4. PROTECTION OF PROPERTY OF
PERSONS UNDER DISABILITY AND MINORS

(2) Appointment of a guardian of the property or other protective order may be made in relation to the estate and affairs of a person if the court determines that (i) the person is unable to manage the person's property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, disappearance or other incapacity; and (ii) the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care and welfare of the person or those entitled to be supported by the person and that protection is necessary or desirable to obtain or provide funds.

. . . .

§ 560:5-404 Original petition for appointment or protective order. (a) The person to be protected, any person who is interested in his estate, affairs or welfare including his parent, guardian of the person, or custodian, or any person who would be adversely affected by lack of effective management of his property and affairs may petition for the appointment of a guardian of the property or for other appropriate protective order.

§ 560:5-408 Permissible court orders. The court has the following powers which may be exercised directly or through a guardian of the property in respect to the estate and affairs of protected persons:

(2)     After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without
         other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best
         interests of the minor, the minor's family and members of the minor's household.

On July 31, 1996, Mrs. Kam's new counsel, Dana W. Smith (Dana Smith), filed a "Memorandum Re: Applicant's Motion to Appoint Co-Guardians of the Property for Edith Ing Kam" ⁽⁶⁾ in which he argued, in relevant part, as follows:

. . . .

On August 27, 1996, Judge Bryant entered an "Order Granting in Part and Denying in Part Applicant's Motion to Appoint Co-Guardians of the Property for Edith Ing Kam" stating, in relevant part, as follows:

Based upon discussion and consideration of the record, THE COURT HEREBY ORDERS THAT:

1. Dawn Slaten, Esq. is appointed the temporary guardian of the property for [Mrs.] Kam until further order of this court; and that Letters be issued to said Guardian without bond.

. . . .

THE COURT FURTHER ORDERS THAT:

On September 9, 1996, Judge Bryant entered an "Order Appointing Temporary Co-Guardians of the Property and Continuing Existing Orders" stating, in relevant part, as follows:

Smith as "Party Pro Se" and "Counsel for Paz Abastillas" and Dana Smith, as counsel for Mrs. Kam, "refused" approval.

On October 3, 1996, Judge Bryant entered the following Findings of Fact:

B.     The Court appointed Patricia Blanchette, M.D., as an Independent Medical Examiner, to examine [Mrs.] Kam and report back to the court; ⁽⁷⁾

C.     Dr. Blanchette examined [Mrs.] Kam on July 18, 1996 and rendered a report to the Court dated August 8, 1996;

D.     [Mrs.] Kam does not consent to these proceedings;

1.   she suffers from Alzheimer's Disease and suffers from dementia of the Alzheimer's Type;

2.  she is unable to care for her person, by bathing, dressing, toileting, cooking, and eating without either supervision or
     assistance;

3.   she does not have the capacity to make reasoned decisions concerning her money and properties; and

4.  she lacks the capacity to make and communicate decisions concerning her person;

G.     Pursuant to Section 346-228(1), [HRS], the department may resolve any case "in an informal fashion as is appropriate . . ." In this case, the department has appropriately chosen to resolve this case in such an informal fashion. Therefore, findings as to abuse or threatened abuse are not required;

H.     The relief ordered in this case is in Mrs. . . . Kam's best interest;

On September 4, 1996, the Office of the Public Guardian commenced, in the Family Court of the First Circuit, case FC-G No. 96-0299 (the Guardianship proceedings) by filing a "Petition for Appointment of Co-Guardians of the Person of an Alleged Incapacitated Person" that stated, in relevant part, as follows:

1.     This petition is for the appointment of co-guardians of the person of [Mrs.] Kam, who appears to be an incapacitated person residing or present within the jurisdiction of this Court, pursuant to section 560:5-102, [HRS].

Effective January 1, 1997, the HRS § 560:1-201 definition of "Court" was changed and HRS § 560:1-302 was added as follows:

§ 560:1-201 General definitions. Subject to additional definitions contained in the subsequent articles that are applicable to specific articles, parts, or sections, and unless the context otherwise requires, in this chapter:

"Court" means the circuit court in this State having jurisdiction in matters relating to the affairs of decedents.

PART 3. SCOPE, JURISDICTION, AND COURTS

§ 560:1-302 Subject matter jurisdiction. (a) To the full extent permitted by the Constitution and except as otherwise provided by law, the court has jurisdiction over all subject matter relating to:

(1)     Estates of decedents, including construction of wills and determination of heirs and successors of decedents, and estates of
         protected persons;

(2)     Protection of minors and incapacitated persons; and

(3)     Trusts.

(c)     The court has jurisdiction over protective proceedings and the family court has jurisdiction over guardianship proceedings.

On February 10, 1997, notwithstanding HRS § 560:5-101 and the amendments quoted above, Mr. Nelson and Dr. Ing filed a "Petition for Appointment of Co-Guardians of the Property" that stated, in relevant part, as follows:

1. This petition is for the appointment of co-guardians of the property of [Mrs.] Kam, who is a protected person residing or present within the jurisdiction of this Court, pursuant to the Order Granting Petitioners [Mr.] Nelson and [Dr.] Ing's Motion for Leave to File Petition for Appointment of Co-Guardians of the Property filed herein on January 2, 1997 and H.R.S. §§ 560:5-102 and 560:5-404.

5. Appointment of Co-Guardians of the Property of [Mrs.] Kam is necessary because she is unable to manage her property and affairs effectively, as defined by H.R.S. §§ 560:1-201(9) and 5-401(2), and she has property that will be wasted or dissipated unless proper management is provided, and funds are needed for the support, care and welfare of the above-named protected person and that protection is necessary and desirable to obtain or provide funds, as evidenced by the report of Patricia Blanchette, M.D. made pursuant to Order for Independent Medical Examination entered July 9, 1996 in FC-AA 96-0003. A copy of said report is attached hereto as Exhibit B.

On April 22, 1997, Judge Choy entered an "Order Granting Petition for Appointment of Co-Guardians of the Property, Filed February 10, 1997". This order appointed Mr. Nelson and Dr. Ing as "Co-Guardians of the Property of [Mrs.] Kam without bond".

On February 25, 1997, Mr. Nelson and Dr. Ing filed a "Motion to Void Estate Planning Documents" seeking to void a list of "estate planning documents executed by [Mrs.] Kam during her incapacity and while under undue influence." Appellants were given notice of the motion. In a memorandum accompanying the motion, Mr. Nelson and Dr. Ing alleged, in relevant part, as follows:

On or about June 7, 1995, [Mrs.] Kam entered into a Fee and Retainer Agreement with . . . Smith, . . . for professional legal services. Mrs. Kam executed an Amended Fee and Retainer Agreement on June 9, 1995. [Abastillas], . . . Smith's wife, works as . . . Smith's paralegal. Carla F. Dominguez and Sheila A. Villalon are . . . Abastillas' daughters.

1. On December 22, 1995 Mrs. Kam executed a Seventh Amendment to Edith I. Kam Revocable Living Trust naming . . . Abastillas as successor trustee in case of Mrs. Kam's inability to act as trustee.

3. On February 9, 1996, Mrs. Kam executed a will which named . . . Abastillas as the personal representative of her estate.

5. On May 24, 1996, Mrs. Kam executed a Will which revokes all prior wills and directs that her estate be distributed to the Edith Ing Kam Trust executed on the same date. The Will names Paz F. Abastillas as personal representative and names [Abastillas'] daughters . . . as successor personal representatives, to serve without bond.

7. On May 24, 1996, Mrs. Kam executed a General Individual and Trustee Power of Attorney appointing . . . Abastillas as attorney-in-fact, individually and as trustee of the Edith Ing Kam Trust of the same date.

(Footnote added; internal citations omitted.)

On April 22, 1997, Judge Choy entered an "Order Granting Motion to Void Estate Planning Documents, Filed February 25, 1997" that stated, in relevant part, as follows:

1.     Seventh Amendment to Edith I. Kam Revocable Living Trust dated December 22, 1995 . . . .

2.     Revocation of Durable Power of Attorney dated December 22, 1995 revoking Durable Power of Attorney dated July 7, 1995 . . . .

3.     Durable Power of Attorney dated December 22, 1995 appointing . . . Abastillas . . . as attorney-in-fact . . . .

4.     Last Will and Testament of Edith I. Kam dated February 9, 1996 . . . .

5.     Revocation of Living Trust dated February 9, 1996 . . . .

6.     Edith I. Kam Revocable Living Trust dated February 9, 1996 . . . .

7.     Will of Edith Ing Kam dated May 24, 1996 . . . .

8.     Edith Ing Kam Trust dated May 24, 1996 . . . .

9.     General Individual and Trustee Power of Attorney dated May 24, 1996 appointing . . . Abastillas as attorney-in-fact . . . .IT

10.     The Deed dated May 24, 1996 by and between Edith I. Kam as Trustee of the Edith I. Kam Revocable Trust, an unrecorded Revocable Living Trust dated September 8, 1988, as Grantor, and Edith Ing Kam, Trustee of the Edith Ing Kam Trust, an unrecorded Revocable Living Trust dated May 24, 1996, as Grantee, and the Transfer Certificate of Title No. 476,059 issued pursuant to said Deed be and are hereby declared null and void . . . .

11.     Title to the real property described in . . . said Deed shall be and hereby is vested in Malcolm Ing, as Successor Trustee of the Edith I. Kam Revocable Trust, an unrecorded Revocable Living Trust dated September 8, 1988, as amended by First through Sixth Amendments to Edith I. Kam Revocable Trust . . . .

On January 8, 2000, Mrs. Kam died. On May 5, 2000, her son, Cedric, filed a "Petition for Formal Probate of Will and Appointment of Personal Representative" (Petition for Probate) commencing, in the Circuit Court of the First Circuit, case P. No. 00-1-0281. In relevant part, the petition states as follows:

2. Petitioner . . . has an interest in the estate as (a) the nominee personal representative, (b) sole devisee under decedent's will as trustee of the decedent's trust, and (c) as decedent's son.

6. Venue for this proceeding in this Court is proper because at the time of death decedent was domiciled in this judicial circuit.

7. There are no personal representatives of the decedent's estate whose appointments have not been terminated.

8. Petitioner has received no demand for notice nor is Petitioner aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this State or elsewhere.

. . . .

12. Petitioner believes the Will to have been validly executed.

A hearing on the Petition for Probate was held on June 30, 2000. On July 17, 2000, Judge Hirai entered an order granting the Petition for Probate and filed a "Judgment of Order Granting Petition for Formal Probate of Will and Appointment of Personal Representative". The former states, in relevant part, that "[t]he decedent died testate, having duly executed the Will dated September 8, 1988 in the manner required by law, and the same is valid and unrevoked." The latter states, in relevant part, that "[t]he Will of the decedent dated September 8, 1988 is admitted to probate as and for the Last Will and Testament of the decedent[.]"

On September 11, 2000, Appellants filed a "Petition for Allowance of and to Enforce and Obtain Payment on Creditor's Claims" (Petition for Allowance) stating that they have "timely presented their claims under Hawaii's non-claims statute, H.R.S. § 560:3-803(a)(1)(A)." In an accompanying affidavit, Abastillas stated the following:

1. I am resident of Kaneohe, Hawaii, and a creditor in the above entitled estate.

2. From June 1995 through July 1996, at the request of decedent, I rendered professional services to her, including but not limited to services of personal friend and companion and financial affairs manager.

3. These services were of the reasonable value of $42,000.00, and decedent agreed to pay this sum to me.

4. There is justly due, owing, and unpaid from decedent to me the sum of $42,000.00, together with interest thereon at the rate of 10% per annum from May 3, 1996, together with attorney's fees as allowed by law.

5. Said sum is not contingent or unliquidated. No payments have been made thereon which are not credited, and there are no offsets against the claim to my knowledge.

In an accompanying affidavit, Smith stated the following:

1. I am an attorney duly licensed to practice law in the State of Hawaii and a creditor in the above entitled estate.

3. There is justly due, owing, and unpaid from decedent to me the sum of $25,851.83, together with interest thereon at the rate of 12% per annum from 10/1/96, plus attorney's fees as provided by agreement and as allowed by law.

On September 11, 2000, an order setting time and place of hearing on the Petition for Allowance was filed. It set the hearing to occur on October 20, 2000 at 9:00 a.m.

On October 11, 2000, Cedric filed two documents. The first was an "Objection to Petition for Allowance . . . Filed September 11, 2000". In the accompanying Memorandum in Support of Objection, Cedric argued the following:

Abastillas alleges that [Mrs.] Kam agreed to pay her the sum claimed, but has presented no evidence of such agreement or that any services were in fact provided or that any such services were of the value claimed.

As will be discussed below, the so-called "services" [Appellants] rendered to [Mrs.] Kam were in fact part of a scheme to ingratiate themselves with an elderly woman with diminished mental capacity, obtain access to her assets, and influence her to change her estate plan to their benefit and to the detriment of Mrs. Kam and her family. As such, the so-called "services" were of no benefit to Mrs. Kam and in fact were to her detriment.

B. EXPLOITATION OF [MRS.] KAM BY [APPELLANTS]

At the time the Petition was filed, Mrs. Kam was 93 years old and had been diagnosed by a psychiatrist, Dr. Vit Patel, as having Alzheimer's Disease and as being vulnerable to financial exploitation. (Dr. Patel's diagnosis was confirmed in August 1996 by Dr. Patricia Blanchette, a court-appointed independent medical examiner.) Moreover, in the Application for Immediate Protection, Ms. Sugimoto reported that: "Mrs. Kam is forgetful and unable to handle her financial matters. She does not know how much money she receives from her social security or her rentals and how much she is paying for legal services from . . . Abastillas and the Law Offices of . . . Smith."

Despite the fact that he and his paralegal had been charged with financially exploiting Mrs. Kam, and were the subject of Judge Bryant's restraining order, Smith, in a flagrant conflict of interest, continued to represent Mrs. Kam.

Smith attempted to use Mrs. Kam's absence from Hawaii as a basis for dismissing the Petition, due to the fact that Mrs. Kam had not been personally served, and on June 18, he made an oral motion to that effect. Mrs. Kam was due to return on June 24, but on that date, despite Dr. Patel's findings and Judge Bryant's Order, Smith sent a letter to Judge Bryant informing him that Mrs. Kam did not wish to submit to the jurisdiction of the court and would therefore be remaining on the mainland. He also sent a letter to Mrs. Nelson, who had filed a missing person's complaint with the police, threatening her with liability for filing the complaint and urging her to withdraw the Adult Protective Services Complaint.

In addition to putting all Mrs. Kam's bank accounts into joint ownership with her, Abastillas accepted a $42,000 gift from Mrs. Kam in May 1996 (after Mrs. Kam's visit with Dr. Patel at which she was diagnosed with Alzheimer's), and moved Mrs. Kam into her house. In addition, $11,000 of Mrs. Kam's money was expended on travel expenses for Abastillas and Mrs. Kam during the June and July 1996 mainland trip mentioned above. The $42,000 and $11,000 was ultimately returned to Mrs. Kam, and Abastillas' name was taken off the joint bank accounts, but only after Judge Bryant's Order of July 3, 1996.

C. HISTORY OF UNDUE INFLUENCE BY [APPELLANTS].

On September 4, 1996, the Office of the Public Guardian filed a Petition for Appointment of Co-Guardians of the Person of an Alleged Incapacitated Person in the Family Court In the Matter of the Guardianship of Edith Ing Kam, An Incapacitated Person; FC-G-96-0299. The petition was granted and by Order entered October 8, 1996, [Mr.] Nelson and [Dr.] Ing . . . were appointed as co-guardians of the person of Mrs. Kam. On April 22, 1997, the Family Court, in exercise of its right to consolidate protective and guardianship proceedings relating to the same person, entered an order appointing Mr. Nelson and Dr. Ing as co-guardians of the property of Mrs. Kam.

On April 22, 1997, the Family Court entered an Order granting the motion and voiding the documents at issue, as well as any transfers of real or personal property made pursuant to the voided documents.

Abastillas claims to have rendered "professional services" to Mrs. Kam and has been presented as a medical doctor. See the heading on the billing statements submitted by Smith in support of his Creditors' Claim. However, while Ms. Abastillas may be a licensed physician in some other jurisdiction, according to the records of the Hawaii Department of Commerce and Consumer Affairs, she is not licensed to practice medicine in the State of Hawaii.

Abastillas claims to have rendered services to Mrs. Kam as a "financial manager". The financial management that Abastillas exerted over Mrs. Kam and her estate consisted of her attempts to gain control over Mrs. Kam's assets while as her attorney-in-fact and upon her death or incapacity as successor trustee of her trust and upon her death as personal representative of her estate and to make a place for herself and her children as beneficiaries of Mrs. Kam's trust and estate. While these "services" would have resulted in substantial benefit to Abastillas and her children had she not been thwarted in her efforts, they were of no benefit to Mrs. Kam.

It is interesting to note that in his July 1, 1996 motion filed with the Family Court in FC-AA No. 96-0003 to dismiss the petition for the protection of Mrs. Kam, Smith indicated that he was filing the memorandum in his capacity as a "Party" to the proceeding and "insofar as he is able", on behalf of Mrs. Kam. Smith obviously recognized that since he was the one who was being accused in the petition of exploiting Mrs. Kam, there was a bit of an ethical problem for him to purport to file a motion in her behalf in that proceeding seeking to dismiss the petition. Nevertheless, after attempting to skate around the ethical problem by filing the petition in his own behalf as a party and after being formally disqualified as Mrs. Kam's counsel on July 3, 1996, Smith has no problem billing Mrs. Kam for the time he had spent on that motion and seeking to collect from her estate for his "services" rendered in that regard. . . . Even more remarkable, the billing statements submitted by Smith in this case include numerous charges for legal services he claims to have rendered to Mrs. Kam after July 3, 1996, the date he was disqualified by Judge Bryant from further representation of Mrs. Kam.

The guardianship estate also spent $20,000 to settle a mechanic's lien suit brought against Mrs. Kam by a contractor for work on her home. Again, after reviewing the case with counsel, the guardians of Mrs. Kam's property concluded that Smith's hard-line defense of that suit was completely dis-economic from Mrs. Kam's standpoint and served only to provide Smith with a vehicle to run up legal fees on an elderly, incapacitated woman who had no idea what Smith's "services" were costing her. That suit resulted in the guardianship estate also having to pay $1,200 to the American Arbitration Association to settle a claim for fees and costs incurred by the Association in an arbitration proceeding instituted by Mrs. Kam's former counsel. After he took over the defense of the case, Smith refused to participate in the arbitration on the grounds that Mrs. Kam was a Jehovah's Witness and her religion did not permit her to participate in an arbitration proceeding where the opposing party was not telling the truth.

Accordingly, the so-called "services" rendered by Smith and Abastillas were of no value to Mrs. Kam and, to the contrary, were to her detriment. In fact, Smith's so-called legal services were simply a vehicle by which Smith unjustly, unconscionably, unprofessionally and unethically attempted to enrich himself at the expense of an elderly, delusional woman who had only the vaguest idea of what was going on and how much it was costing her. Smith, as an attorney, is not entitled to compensation for this type of "services". By the same token, since Abastillas was at all relevant times Smith's paralegal, her "services" are subject to the same standards as are applicable to Smith and are therefore also non-compensable. In addition, any claims that Smith and Abastillas might conceivably have against the estate would be more than wholly offset by the counterclaims the estate have against them for the harm they caused to Mrs. Kam and her estate.

Whatever "services" Smith and Abastillas rendered were not for Mrs. Kam's benefit, but rather were for the sole purpose of taking advantage of her vulnerable state in an attempt to fill their own pockets. Smith and Abastillas have already cost Mrs. Kam many thousands of dollars. Now that Mrs. Kam has died, the assertion of their claims some four years after the events in question is not only a classic example of unmitigated gall, but sadly for a family that has already been emotionally and financially victimized by their greed, manipulation and exploitation, it is having the effect of further depleting what is left of Mrs. Kam's modest estate.

(Internal citations omitted; use of "sic" in original.) Second, Cedric filed a Petition for Instructions "regarding the claims made by . . . Abastillas." This petition noted that "Abastillas' claims are based upon a will and trust agreement executed in May of 1996, both of which were voided by the Family Court's April 22, 1997 Order," and prayed, in relevant part, for (1) a decision "that the claims made by Abastillas under the May 1996 will and trust agreement are without merit, and (2) that the Court instruct [Cedric] to proceed pursuant to" the July 17, 2000 "Order Granting Petition for Formal Probate of Will and Appointment of Personal Representative" and "Judgment of Order Granting Petition for Formal Probate of Will and Appointment of Personal Representative".

On October 19, 2000, at 4:21 p.m., Appellants filed their 309-page "Creditor's Reply to Objection Filed 10/11/00 By Personal Representative to Creditor's Petition filed 9/11/00 For Allowance of Creditor's Claims", which includes twenty-eight exhibits. Their reply stated, in relevant part, as follows:

Creditors apologize to the Court for the lateness of this filing; but they point out that the Personal Representative's Objection was filed and served only last Wednesday, October 11. Creditors have thus only a little over five working days to put together this Reply.

C. THE COMING WILL CONTEST.

D. CEDRIC'S ATTEMPTED PREEMPTIVE STRIKE.

In fact, Cedric has attempted to fire a preemptive strike: on the same date as he filed his Objection to the Creditors' Claims, he also filed a "Petition for Instructions" attaching the same exhibits as are attached to his Objection. . . .

After the petition to vacate and for probate of the 1996 will is filed, counsel will seek to consolidate all three of these matters in one proceeding under Probate Rule 14 or Haw. R. Civ. P. 42(a). The reason is that they all involve the same four questions: (1) whether Family Court Judge Bryant's "findings" and orders in FC-AA No. 96-0003 determine any issue in this case; (2) whether Family Court Judge Choy's order in FC-G No. 96-0299 voiding 1996 will and trust was valid and enforceable or instead null and void ab initio for lack of subject matter jurisdiction; (3) whether decedent had testamentary capacity; and (4) whether decedent was subject to undue influence.

. . . .

IV: Conclusion

This case is an adversary, contested case. It is about to be joined by two other, related cases, which should be consolidated together. This case should be assigned to the civil calendar and the Hawaii Rules of Civil Procedure be made applicable.

2. When I first met Edith, she was barricaded in her Maunawili home, with three locks on the door, and never ventured out. Eddie, her son, had sued her in active ongoing litigation, yet persisted in living with her. He lived in the garage but would break into Edith's house and steal her possessions and her food. She was also beset by a "sister" in Jehovah's Witnesses named Paulette Paonessa. Paulette had gotten her in bad situations, such as the purchase of a Cadillac that Edith never enjoyed and an investment of $150,000 for an Arby's franchise which turned out to be a scam and a total loss.

7. I am part Chinese. I believe that in me, Edith saw her own self in younger life--competent, active, educated (Edith had a degree from Boston University), worldly, and independent. There was genuine love and affection between us. While in California, we stayed at my relatives who are from mainland China. . . .

10. While we were in Los Angeles, and after we learned of the Protective Proceedings, I made an appointment for Edith at UCLA Medical Center to see an Alzheimer's specialist, to whom I had been referred by one of the Doctors (now retired) on the Presidential Blue-Ribbon Commission on Alzheimer's Disease.

12. Edith said she was affronted at being forced by the State of Hawaii . . . to undergo mental capacity testing by Dr. Blanchette. She said she proceeded with the examination unwillingly, refusing to cooperate fully and finishing it by mocking the tests, as in drawing the clockfaces backwards. Had I known that she was going to deliberately sabotage the tests, I would have exhorted her to do her level best and explained to her that her freedom and future depended on it. She thought it was "just for the records" as she was told, and then she could go home again.

14. I am a licensed physician in the Philippines, where I was trained. When I came to the United States, I worked as a research physician in California under a UCLA grant on research in metabolic and endocrine diseases, and later on as a Fogarty Fellow at the National Institutes of Health (Maternal and Child Health and Human Development), in Bethesda, Maryland. I came to Hawaii to take care of my mother's illness and shifted focus from medical to paralegal. I am not interested in the actual practice of medicine and never purported to do so with anyone, including Edith. When she needed medical attention, I took her to different specialists to treat her.

20. As Edith and I became closer and closer and spent more and more time together, she began to talk of adopting me. She said that she had always wanted a daughter, had treated a relative as one, but had had a falling out with her. She also told me that she wanted to leave her property to me in her will.

At the October 20, 2000 hearing, the following was stated, in relevant part:

[JUDGE CHANG]: Did you receive [Counsel for Appellant's] reply?

[COUNSEL FOR APPELLANTS]: Your Honor, I apologize for the presentation. Opposing counsel's two documents were overwhelming for us and we tried our best to have some kind of response to the court because we believe that this is a complex litigation matter plus the fact that we are also preparing to file in probate the 1996 will of the decedent.

[COUNSEL FOR CEDRIC]: Let me respond to that, Your Honor. Number 1, I guess undisputed the reply memo is untimely, you know, by a lot. Number 2, . . . , the bulk of it rehashes matters that have taken place over years including various other orders by the court and just tries to make argument of things that really aren't before the court on this petition. And then the balance of the memo, the reply memo includes argument and exhibits which if you look at them should have been part of the original petition.

[COUNSEL FOR APPELLANTS]: Well, Your Honor, my clients believe that, you know, there are two sides to every question. And we believe that there are a lot of issues here that have not been resolved as they have not had an opportunity to address. And they feel that . . . they should have an opportunity to present their side of the argument and to have hearings and trials on their positions and also on the fact that there is a subsequent will that decedent signed and that they would want an opportunity to try to probate that will.

On November 8, 2000, Judge Chang entered an "Order Denying Petition for Allowance . . . Filed September 11, 2000".

On November 2, 2000, Abastillas filed (1) a "Petition to Vacate Previous Order for Probate of Will, to Redetermine Heirship, for Formal Probate of Will, and for Formal Appointment of Personal Representative" (Petition to Vacate), and (2) a "Presentation to Court of True and Correct Copies of Decedent's 1996 Will and Trust".

On November 2, 2000, the court clerk filed an order setting the time and place of hearing on the Petition to Vacate, which stated, in relevant part, as follows:

That . . . Jan[uary 12, 2001] at 9:00 a.m., . . . is the time and place of hearing of the petition.

That pursuant to Rule 10(c) of the Hawaii Probate Rules, any party wishing to object or respond to the petition shall file such objection or response with the Court and serve it on all interested persons within 30 days of service of the Petition and this Order or on the date of the scheduled hearing, whichever date occurs earlier.

Objection 1:

Objection 2:

Objection 3:

Objection 4:

. . . .

8. Pursuant to Probate Rule 14, Respondent further requests that this matter be consolidated for hearing with Respondent's Petition filed 11/2/00 to Vacate Previous Order For Probate Of the 1988 Will and To Redetermine Heirship in accordance with the 1996 will (and trust). . . .

In his Memorandum in Support of Response and Objections, Cedric argued that the family court had subject matter jurisdiction to void the 1995-1996 estate planning documents. In his view,

When a guardianship of the property proceeding is consolidated in Family Court with a pending guardianship of the person proceeding, as specifically permitted by §§ 346-235, 560:1-302 and 560:5-102, HRS, it is those statutes that confer jurisdiction on the Family Court to administer the guardianship of the property proceeding.

The only rational answer to this question is that the Family Court has the power to do all things in that proceeding that the Probate Court could do in a guardianship of the property proceeding being administered in the Probate Court under HRS Chapter 560, Article V, Part 4 . . . .

. . . [O]nce the Family Court concluded that the documents had in fact been executed under undue influence or without the requisite mental capacity, or both, the Court was acting "for the benefit of the protected person" in voiding those documents. . . .

Under HRS § 560:5-408(3), it is clear that the Family Court had the authority and jurisdiction to void the 1995-1996 estate planning documents if it concluded that doing so would be for Mrs. Kam's benefit. . . .

In addition, independently of its power to issue the Order pursuant to the power granted to it by HRS § 560:5-408(3), the Family Court also has broad equity powers under § 571-3, Hawaii Revised Statutes, which states as follows:

. . . .

At the December 1, 2000 hearing on the Petition for Instructions, Judge Hirai denied Abastillas' request for continuance of hearing to January 12, 2001 and did not make any other rulings.

On December 13, 2000, Cedric filed an "Objection to Petition to Vacate . . . ." In a memorandum in support of the objection, Cedric stated that the May 24, 1996 Will and Trust

significant changes were made to [Mrs.] Kam's estate plan soon after [Appellants] entered [Mrs. Kam's] life. . . .

At the January 12, 2001 hearing, Judge Hirai stated that

On January 2, 2002, the Court entered: (1) an "Order Granting Petition for Instructions Filed October 11, 2000"; (2) an "Order Denying Petition to Vacate . . . Filed November 2, 2000"; and (3) an "Order Granting in Part and Denying in Part the Petition Filed January 30, 2001 by [Appellants] for Rule 54(b)/Interlocutory Appeal Certifications; for Entry of Final Judgment; and for Stay of Distribution Pending Appeal."

Order (1) states, in relevant part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

Order (2) states, in relevant part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that said Petition shall be and is hereby denied, the Court having determined that the Order Granting Motion to Void Estate Planning Documents filed February 25, 1997 which was entered on April 22, 1997 in FC-G No. 96-0299, in the Family Court of the First Circuit, State of Hawaii, and the Order Granting Petition for Formal Probate of Will and Appointment of Personal Representative filed herein on July 17, 2000, are valid and enforceable and remain in effect.

Order (3) was amended on August 5, 2002, when Judge Hirai entered an "Amended Order Granting in Part and Denying in Part the Petition Filed January 30, 2001 by [Appellants] for Rule 54(b)/Interlocutory Appeal Certifications; for Entry of Final Judgment; and for Stay of Distribution Pending Appeal" that stated, in relevant part, as follows:

1.     Based on the agreement of counsel, the petition is granted as to the appeal pursuant to Probate Rule 34.

3.     Judgments may be submitted for each of the aforesaid Orders.

On September 13, 2002, the court entered (1) a "Final Judgment Re Order Denying Petition for Allowance . . . Filed November 8, 2000"; and (2) a "Final Judgment Re Order Denying Petition to Vacate . . . Filed January 2, 2002." On September 16, 2002, the court entered the "Final Judgment Re Order Granting Petition for Instructions Filed January 2, 2002," that stated, in relevant part, as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Petition for Instructions, filed herein on October 11, 2000 by Petitioner/Personal Representative Cedric C.I. Kam, shall be and is hereby granted, the Court having determined that the Order Granting Motion to Void Estate Planning Documents filed February 25, 1997, which was entered on April 22, 1997 in FC-G No. 96-0299, in the Family Court of the First Circuit, State of Hawaii, and the Order Granting Petition for Formal Probate of Will and Appointment of Personal Representative filed herein on July 17, 2000, are valid and enforceable and remain in effect.

On October 16, 2002, counsel for Smith filed a "Dismissal of Appeal of [Smith] From: (1) the Final Judgment Filed September 16, 2002, Re Order Filed January 2, 2002, Granting Petition for Instructions . . .; and (2) the Final Judgment Filed September 13, 2002, Re Order Filed January 2, 2002, Denying Petition . . . to Vacate . . ." due to the fact that Smith was "neither a petitioner nor respondent in respect of said judgments[.]" In other words, Smith appeals only the September 13, 2002 "Final Judgment Re Order Denying Petition for Allowance . . . Filed November 8, 2000".

This case was assigned to this court on October 3, 2003.

A.     Judge Bryant's Orders in FC-AA No. 96-0003
(Family Court Protection Proceedings)

First, the June 14, 1996 Order for Immediate Protection that states, in relevant part, as follows:

1.     The subject appears to be a dependent adult within the meaning of § 346-222, [HRS].

THE COURT FURTHER FINDS PROBABLE CAUSE THAT:

Third, the following findings of fact entered on October 3, 1996 that state, as follows:

E. [Mrs.] Kam is an incapacitated adult as evidenced by Dr. Patricia Blanchette's report in that:

4.     she lacks the capacity to make and communicate decisions concerning her person;

Abastillas argues that Judge Bryant's orders and findings are invalid for the following reasons:

2.     Judge Bryant lacked personal jurisdiction over Edith.

On the question of personal jurisdiction, counsel for Abastillas stated, in a memorandum filed on November 13, 2000, in relevant part:

The Family Court Protection Petition was filed June 14, 1996. Edith and Abastillas had left Hawaii the day before, June 13, on their mainland trip. It was a busy day for Edith . . . . Then she and Abastillas boarded a plane for San Francisco. Thus Edith was on the mainland on June 14 and was never personally served with the petition.

Thus under coercion from the Court--exercised against her counsel--Edith was forced to return to Hawaii and appear before Judge Bryant.

(Internal citations omitted.)

The relevant statute is HRS § 346-231(e). It requires that "[c]ertified copies of the application and order shall be personally served upon the dependent adult[.]" Counsel for Abastillas alleges that

Edith was on the mainland on June 14 and was never personally served with the petition.

Thus under coercion from the Court--exercised against her counsel--Edith was forced to return to Hawaii and appear before Judge Bryant.

The statement that Mrs. Kam was never personally served with the petition is based solely on Smith's declaration that "[t]o the best of my knowledge, Edith was on the mainland on June 14 when the Protective Proceedings were filed and was not personally served with the petition." Although the record does not answer the question as to whether Mrs. Kam was personally served with the petition, it does show, in her June 24, 1996 letter to Judge Bryant ⁽¹⁰⁾, that she admits having personal knowledge of the petition and decided not to respond to it. In addition, the record shows, and counsel for Abastillas admits, that Mrs. Kam actually returned to Hawai`i and appeared before Judge Bryant. The record does not show that this appearance was a special appearance.

We conclude that the service requirement stated in HRS § 346-231(e) is a notice requirement that can be satisfied by actual knowledge or by a general appearance. In light of the record, we conclude that HRS Chapter 346 provided the family court with jurisdiction to take appropriate action in the Protection Proceedings.

Regarding adjudication, on September 9, 1996, Judge Bryant entered an "Order Appointing Temporary Co-Guardians of the Property and Continuing Existing Orders" stating that the "[t]rial set for September 23 and 24, 1996 is taken off the calendar," and ordering that the "[p]arties shall submit proposed findings within seven days[.]" Smith, as "Party Pro Se" and "Counsel for Paz Abastillas" "refused" to approve this order. However, on October 3, 1996, the court entered a finding that "[a]t the Pretrial Conference held September 9, 1996, the Court was informed that the parties had reached an agreement to settle this case by the entry [of] the Order Appointing Temporary Co-Guardians of the Property and Continuing Existing Orders . . . on the understanding that, while parties [Mrs.] Kam, . . . Smith, and . . . Abastillas would not sign approval as to form or substance, neither would they oppose the entry of the order or protest it once entered." Therefore, Abastillas did not disagree with the settlement. In effect, her non-disagreement is the stipulation referred to in HRS § 346-240(c), and the acceptance referred to in HRS § 346-241(e).

Consequently, in light of the following rule of law and subject to one exception to be discussed in the next part, we conclude that Abastillas is bound by Judge Bryant's decisions.

In Doe v. Doe, 99 Hawai`i 1, 52 P.3d 255 (2002), the child's mother filed a petition for paternity against the alleged father. The Hawai`i Supreme Court decided that the doctrine of issue preclusion barred the child's mother from bringing the paternity action because the divorce decree between the mother and her former husband had declared that the child was the son of the mother and her former husband, and the issue of paternity was essential to the portion of the final judgment of divorce that ordered the former husband to make support payments and provided for custody and visitation. The opinion of a majority of the court states, in relevant part, as follows:

Pratt v. Pratt, 104 Hawai`i 37, 40, 84 P.3d 545, 547 (Hawai`i App. 2004).

B.     Judge Choy's April 22, 1997 Order
Granting Motion to Void [1995 and 1996]
Estate Planning Documents, Filed February 25, 1997
in FC-G No. 96-0299 (Guardianship Proceedings)

On October 8, 1996, based on the provisions of Hawai`i's Uniform Probate Code, HRS §§ 560:5-101 and -102, the family court appointed Lyle and Dr. Ing as co-guardians of Mrs. Kam's person.

On February 10, 1997, allegedly based on the provisions of Hawai`i's Uniform Probate Code, Lyle and Dr. Ing filed a "Petition for Appointment of Co-Guardians of the Property." On April 22, 1997, Judge Choy entered (1) an "Order Granting Petition for Appointment of Co-Guardians of the Property, Filed February 10, 1997." This order stated that the family court had "jurisdiction pursuant to H.R.S. § 560:5-102" and appointed Lyle and Dr. Ing as "Co-Guardians of the Property of [Mrs.] Kam . . . without bond[,]" and (2) an "Order Granting Motion to Void Estate Planning Documents, Filed February 25, 1997."

In the Guardianship Proceedings, we conclude that: (1) the family court had jurisdiction over the "guardian of the person"; (2) no later than January 1, 1997, the family court did not have jurisdiction over the "guardian of the property"; and (3) HRS Chapter 560, Hawaii's Uniform Probate Code, did not authorize the family court to enter its two April 22, 1997 orders, and, therefore, those orders are void ab initio.

HRS §§ 560:5-101 and -102 state as follows:

560:5-101 Definitions and use of terms. Unless otherwise apparent from the context, in this chapter:

. . . .

(3)     A "protective proceeding" is a proceeding under the provisions of section 560:5-401 to determine that a person cannot
         effectively manage or apply the person's estate to necessary ends, either because the person lacks the ability or is
         otherwise inconvenienced, or because the person is a minor, and to secure administration of the person's estate by a
         guardian of the property or other appropriate relief;

(4)     A "protected person" is a minor or other person for whom a guardian of the property has been appointed or other
         protective order has been made;

Prior to January 1, 1997, in HRS § 560:1-201(5), Hawaii's Uniform Probate Code stated that "'Court' means the circuit court having jurisdiction in matters relating to trusts and the estates of decedents, missing persons, protected persons, minors and incapacitated persons." This definition of "Court" includes both the probate court and the family court. ⁽¹¹⁾ It allowed the following interpretation of HRS § 560:5-102: "The [probate court and the family court have] jurisdiction over protective proceedings and the family court has jurisdiction over guardianship proceedings."

Commencing January 1, 1997, Hawaii's Uniform Probate Code states, in HRS § 560:1-201, that "'Court' means the circuit court in this State having jurisdiction in matters relating to the affairs of decedents" and, in HRS § 560:1-302(c), that "[t]he court has jurisdiction over protective proceedings [HRS § 560:5-401] and the family court has jurisdiction over guardianship proceedings." These changes require the following interpretation of HRS § 560:5-102: "The [probate] court has jurisdiction over protective proceedings [including all proceedings involving a guardian of the property] and the family court has jurisdiction over guardianship [of the person] proceedings."

C.     Judge Hirai's Decisions Regarding
Cedric's Petition for Instructions in
P. No. 00-1-0281 (Probate Proceedings)

As noted previously, the September 16, 2002 judgment states, in relevant part, as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Petition for Instructions, filed herein on October 11, 2000 by Petitioner/Personal Representative Cedric C.I. Kam, shall be and is hereby granted, the Court having determined that the Order Granting Motion to Void Estate Planning Documents filed February 25, 1997, which was entered on April 22, 1997 in FC-G No. 96-0299, in the Family Court of the First Circuit, State of Hawaii, and the Order Granting Petition for Formal Probate of Will and Appointment of Personal Representative filed herein on July 17, 2000, are valid and enforceable and remain in effect.

Abastillas asserts the following points of error:

1.     Judge Choy's order was not "valid and enforceable;" rather, it was null and void ab initio for lack of subject matter jurisdiction.

3.     Judge Bryant did not actually adjudicate any issue concerning Edith's testamentary capacity of whether Abastillas unduly influenced Edith to execute her 1996 will, as there was never an adversary, evidentiary hearing in which any fact was tried; instead, the case settled.

5.     There were material issues of fact concerning the issues of testamentary capacity and undue influence which required adjudication by jury trial and prevented summary disposition of this contested matter.

(Internal citations omitted.)

For two reasons, we conclude that Judge Hirai's two challenged final judgments are wrong.

First, Judge Bryant's October 3, 1996 finding that Mrs. Kam did "not have the capacity to make reasoned decisions concerning her money and properties" is expressly based on Dr. Blanchette's examination of Mrs. Kam on July 18, 1996. Based on Judge Bryant's valid finding, Judge Choy decided that various "estate planning documents executed by [Mrs.] Kam be and are hereby declared null and void[.]" The first of those documents is dated July 7, 1995, and the last is dated May 24, 1996. All of these documents were executed prior to Dr. Blanchette's examination of Mrs. Kam on July 18, 1996. Admittedly, the record indicates that Mrs. Kam showed signs of Alzheimer's no later than April of 1996. Dr. Vit Patel, who made this diagnosis based upon an April 19, 1996 interview, stated that "[c]oncerns this examiner would have is essentially need for immediate protection of patient's property and financial resources to which is most vulnerable for exploitation because of her significant and clear dementia." Judge Bryant did not, however, find that Mrs. Kam did "not have the capacity to make reasoned decisions concerning her money and properties" when she executed the documents declared null and void by Judge Choy's April 22, 1997 order.

Second, no later than January 1, 1997, the family court did not have jurisdiction over the "guardian of the property", and HRS Chapter 560, Hawaii's Uniform Probate Code, as amended effective January 1, 1997, did not authorize the family court to enter the two April 22, 1997 orders in the Guardianship Proceedings.

1.     The probate court erred when it did not follow H.R.S. § 560:3-804 and Probate Rule 63 by holding that Creditors should have filed all their documentary proof with their petition. ⁽¹²⁾ The probate court made this error at the October 20 hearing, when, as earlier quoted, it stated that it would disregard Creditors' reply as "untimely" because the exhibits attached to the reply should have been part of Creditors' petition. Creditors cited H.R.S. § 560:3-804 both in their creditors' claims and in their petition. The point was not specifically called to the attention of the probate court during oral argument, as Creditor's were surprised by the probate court's position.

2.     The probate court also erred when it held the reply "untimely," failed to follow Probate Rules 19 and 20, and summarily denied Creditors' petition without treating it as a contested matter. The probate court made these errors at the October 20, 2000, hearing, when, as quoted above, it stated that Creditors' reply was "untimely," then ignored the rules and procedures for handling a "contested matter," and denied Creditors' petition summarily without considering its merits at a deferred and rescheduled hearing. Creditors pointed these errors out to the probate court and objected thereto in their memorandum of law in support of their reply[.] . . . Creditors further stated that

(Footnote added.)

The events relevant to this point on appeal occurred as follows:

On July 3, 1996, in the Protection Proceedings, Judge Bryant entered an "Order Granting Motion to Compel Disclosure and to Disqualify Counsel, and Denying Motion to Dissolve Order for Immediate Protection, Vacate Appointment of Temporary Guardian, and Dismiss Petition for Protection".

On Monday, September 11, 2000, at 11:03 a.m., Appellants filed the Petition for Allowance. Abastillas sought "$42,000.00 together with interest thereon at the rate of 10% per annum from May 3, 1996, plus attorney's fees as allowed by law for professional services rendered including but not limited to services of personal friend and companion and financial affairs manager[.]" This request was for services "[f]rom June 1995 through July 1996[.]" Smith sought "$25,851.83, together with interest thereon at the rate of 12% per annum from 10/1/96, plus attorney's fees as provided by agreement and as allowed by law for professional services rendered and costs incurred, in accordance with the billings attached hereto as Exhibits A and B[.]" This request noted that Smith had been paid for his services prior to June 1996. For June 1996, he sought a total of $13,077.19 ($379.24 costs, $12,190 fees, and $507.95 state excise tax). For July, he sought a total of $12,774.64 ($1,425.65 costs, $10,895 fees, and $453.99 state excise tax).

On September 11, 2000, at 11:05 a.m., Appellants filed an "Order Setting Time and Place of Hearing on Petitioners' Petition for Allowance . . . ." This order scheduled the hearing to be held on Friday, October 20, 2000, at 9:00 a.m. At that time, HPR Rule 10(c) stated, in relevant part, as follows: ⁽¹³⁾

(c) Time to File Pleadings or Reports. A party objecting or responding to a petition must file the objection or response with the court and served it on interested persons within 30 days of service of the petition and notice of hearing, . . . . Unless otherwise ordered by the court, pleadings in response to a response or objection, . . . shall be filed with the court and served on counsel for parties who have appeared in the proceeding no less than 72 hours prior to the time set for the hearing as originally set[.]

On Tuesday, October 17, 2000, HPR Rule 10(c)'s "72 hours prior to the time set for the hearing" occurred at 9:00 a.m. Prior to the hearing on October 20, 2000, Appellants did not ask the court for additional time to respond to Cedric's objection.

On Thursday, October 19, 2000, at 4:21 p.m., Appellants filed their "Creditors' Reply to Objection Filed 10/11/00 by Personal Representative to Creditors' Petition Filed 9/11/00 for Allowance of Creditors' Claims." It states in its first paragraph:

Creditors apologize to the Court for the lateness of this filing; but they point out that the Personal Representative's Objection was filed and served only last Wednesday, October 11. Creditors have thus had only a little over five working days to put together this Reply.

THE COURT: Before the court this morning is a petition to allow for certain claims being asserted by . . . Abastillas and . . . Smith. The court first finds that the reply filed on October 19th at 4:21 in the afternoon is untimely.

Having reviewed the timely filed and properly submitted matters presented to the court, the court finds simply that the petitioners in this case, Abastillas and Smith, have failed to establish factual and/or legal basis which would warrant their entitlement for payment of claims as requested or alleged. The petition is denied.

Abastillas further argues that the September 11, 2000 petition is a "contested matter" and as such, the court should have deferred it for a rescheduled hearing pursuant to HPR Rules 19 and 20. HPR Rule 19 defines a "contested matter" as "one in which an objection has been filed." ⁽¹⁴⁾ HPR Rule 20 states how the court should dispose of "contested matters":

RULE 20. Disposition of contested matters.

(b) Guideline for Assignment. The court may use as a guideline on whether to assign a contested matter to the civil trials calendar the expected length of the hearing and whether it will take more than one-half day. The court may also assign other matters to the civil trials calendar, with or without the stipulation of the parties, and the court, at the request of all parties, may retain on the probate calendar a contested matter that would otherwise be assigned to the civil trials calendar, if the court determines the matter can be handled more efficiently and effectively. When the court assigns a contested matter to either calendar, the court may set a status conference date, which the court clerk will note in the order assigning the contested matter, or in a separate status conference order.

(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. 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.

(e) Effect on Underlying Matter. The designation of an issue as a contested matter and the assignment thereof to the civil trials calendar or the probate calendar shall not affect the underlying proceeding, and the proceeding shall continue to the extent that such administration is not inconsistent with the issues being contested.

We agree with Abastillas that the creditor's claim in the Petition for Allowance became a "contested matter" when Cedric filed an objection to it. It was within Judge Chang's discretion to retain the matter or assign it to the civil trials calendar. Abastillas argues that Judge Chang abused his discretion because he "failed to make the order of assignment[.]" Essentially, Abastillas is arguing that the creditors' claim is a "complex and time consuming" case that HPR Rule 20 required Judge Chang to assign to the civil court. Abastillas fails to appreciate HPR Rule 20's use of the word "may". Assuming the creditors' claim in this case was a "complex and time consuming" case, it was within Judge Chang's discretion to retain it and not assign it to the civil court.

Mrs. Kam showed signs of Alzheimer no later than April of 1996. Dr. Vit Patel, who made this diagnosis based upon an April 19, 1996 interview, stated that "[c]oncerns this examiner would have is essentially need for immediate protection of patient's property and financial resources to which is most vulnerable for exploitation because of her significant and clear dementia." Dr. Blanchette's diagnosis in August of 1996 confirmed that Mrs. Kam "is sufficiently impaired so that she lacks the capacity to make and communicate decisions concerning her person." Smith's creditor claims cover his billing for legal fees dating from June 1996 to July 1996. ⁽¹⁵⁾ Essentially, Smith is claiming attorney fees for work completed on behalf of Mrs. Kam during a time when, according to the record, Mrs. Kam did not have the mental capacity to manage her own financial affairs. Moreover, Smith was expressly disqualified as attorney for Mrs. Kam by court order on July 3, 1996.

Abastillas asserts the following claim:

2.     From June 1995 through July 1996, at the request of decedent, I rendered professional services to her, including but not limited to services of personal friend and companion and financial affairs manager.

4.     There is justly due, owing, and unpaid from decedent to me the sum of $42,000.00, together with interest thereon at the rate of 10% per annum from May 3, 1996, together with attorney's fees as allowed by law.

Abastillas argues that even if it was within Judge Chang's discretion to retain the case, the hearing should have been deferred and rescheduled for a later date. She contends that "[a]t the rescheduled hearing, the probate court could then have considered Creditors' reply and its exhibits and memorandum of law." In light of the record, we conclude that the court did not abuse its discretion in deciding not to consider the reply.

Nevertheless, in light of our decision vacating the final judgments pertaining to the probate of the will and the petition for instructions, we also vacate the final judgment pertaining to Appellants' creditor's claims.

CONCLUSION

We vacate (1) the September 13, 2002 "Final Judgment Re Order Denying Petition to Vacate Previous Order for Probate of Will, to Redetermine Heirship, for Formal Probate of Will, and for Formal Appointment of Personal Representative Filed November 2, 2000, Filed January 2, 2002"; (2) the September 16, 2002 "Final Judgment Re Order Granting Petition for Instructions Filed October 11, 2000, Filed January 2, 2002"; and (3) the September 13, 2002 "Final Judgment Re Order Denying Petition for Allowance of and to Enforce and Obtain Payment on Creditors' Claims Filed September 11, 2000, Filed November 8, 2000."

DATED:  Honolulu, Hawai`i, August 8, 2005.

Roger Y. Dewa
for Petitioners-Appellants.

1.    Representing Petitioners-Appellants Robert A. Smith (Smith) and Paz F. Abastillas (Abastillas), collectively referred to as "Appellants," attorney Roger Y. Dewa (Dewa) filed a second amended opening brief. Representing only Abastillas, Dewa filed an opening brief.

2.    On April 19, 1996, Vit Patel, M.D., conducted a psychiatric examination of Edith Ing Kam (Mrs. Kam) and reported, in relevant part, as follows:

At the beginning of the interview on her own volition she began saying some grave things about some people trying to kill her and that her life might be in danger and so the examiner asked her specifically what she meant. Throughout the hour long interview she never quite got around to answering that question specifically or any other question. What she began essentially rambling about with speech that seemed superficial but when followed has little coherent substance to it was that she had a rental agent who used to collect the rent in cash and that she never gave her the money and that she did not know what happened to the money . . . . Then she mentioned yet another person who apparently is a paralegal for a certain lawyer that the patient has hired by the name of Mr. Robert Smith and whose girlfriend she may be also who's supposed to bring her some food. Patient then went on to state that this other person was a nice woman in her fifties whom she had even thought of adopting. Asked about why she would want to adopt a person at her age and somebody who was in no way related to her and who was this old, patient again did not have any particular or clear answer. She then went on to state on her own that some of the people in her church as Jehovah's Witness[es] and the elders did not like this other woman because they thought that she was scheming and perhaps not good for the patient and so patient stated that [she] was now having some doubts about adopting this other person.

When I inquired about her mentioning that she is suing a lot of people including her last rental agent and who was handling her case, she said that it was a certain Mr. Robert Smith that she had recently hired. She also stated that she has in the past fired other attorneys. It was not at all clear why she was suing one or more people. When further asked how much money she [was] expending in terms of fees or retainers to her lawyers she had absolutely no idea and her only answer was "it's per case". Patient stated vaguely that she may have had a $5,000.00 retainer but she did not know how much she was being charged on a monthly basis.

Concerns this examiner would have is essentially [the] need for immediate protection of patient's property and financial resources to which is [sic] most vulnerable for exploitation because of her significant and clear dementia. While this dementia does not interfere with her functioning independently in terms of carrying on her basic life living at home and managing, it is clear that for 3 days she did not have any food and she obviously was not able to get it or did get it and she had no particular explanation for it. Secondarily, she has a rather delusional belief system about her son that becomes significant in terms of rather significant distorted actions on her part. She for some reason [which is] not very clear, only talks in very critical and negative terms of her 64 year old son and connects it to the son's ex-wife and also what seems to be rather irrational and unreasonable ways.

3.    Section 1 of Act 161 (2004) states that "Article V of chapter 560, Hawaii Revised Statutes [(HRS)], is amended by adding four new parts to read as follows[.]" The "four new parts" are:

It appears that the words "by adding four new parts" should say "by replacing the existing four parts (HRS §§ 560:5-101 through -105, 560:5-201 through -212, 560:5-301 through -313, and 560:5-401 through 431 (1993 and Supp. 2003)) with the following four parts."

Act 161 (2004) takes effect on January 1, 2005.

4.    Commencing January 1, 1997, Hawaii Revised Statutes (HRS) § 560:3-401 states as follows:

Formal testacy proceedings; nature; when commenced. (a) A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in section 560:3-402(a) in which the person requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or a petition in accordance with section 560:3-402(b) for an order that the decedent died intestate.

(c) During the pendency of a formal testacy proceeding, the registrar shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.

5.    Effective January 1, 1997, HRS § 560:3-803 states as follows:

(1) No later than:

(A)     Four months after the date of the first publication of notice to creditors if notice is given in
          compliance with section 560:3-801(a); or

(2) Within eighteen months after the decedent's death, if notice to creditors has not been published as provided in section 560:3-801(a) or delivered as provided in section 560:3-801(b).

(c) All claims against a decedent's estate which arise at or after the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, the decedent's trustee, and the heirs and devisees of the decedent, unless presented as follows:

(2) Any other claim, within the later of four months after it arises, or the time specified in subsection (a)(2).

(1) Any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate;

(3) Collection of compensation for services rendered and reimbursement for expenses advanced by the personal representative or trustee or by the attorney or accountant for the personal representative of the estate or the decedent's trustee.

6.    The record does not contain a copy of "Applicant's Motion to Appoint Co-Guardians of the Property for Edith Ing Kam[.]"

7.    In a letter dated July 8, 1996, Smith faxed a letter to Judge John C. Bryant which states, in relevant part, as follows:

1.     Patricia Lanoie Blanchette, M.D., MPH
        Geriatric Specialist

8.    Attached to the memorandum as an exhibit is a May 29, 1996 letter written by Abastillas to Neil T. Nakamura, Esq. It states, in relevant part, as follows:

I have now had a chance to review and try to take in the sense of the total package of trust documents executed at your office last week. I have the following inquiries:

1.     Revocation of Existing Living Trust: nowhere (that I can find) in the new Living Trust does it
        revoke the present Living Trust. I assume this should be done; I also suppose that Mr. Smith can do
        this.

2.     Preamble ¶ B (Spendthrift Trust for Eddie):

       (c)     Trustee: I do not see any specific provision designating who is Eddie's trustee, and I wonder if
                 this is covered by the Preamble, and its designation of Edith as trustee followed by myself,
                Carla, and Sheila, or in the general definition of "trustee" contained in Part Three, ¶ 60.