In Re: The Estate of Byung Tae Oh

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-FEB-2024
08:11 AM
Dkt. 103 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE ESTATE OF
BYUNG TAE OH, Deceased

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(P. NO. 17-1-0230)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Hiraoka and Wadsworth, JJ.)

This appeal arises out of a proceeding in which
Petitioner-Appellee Wonki Oh (Petitioner) sought and obtained the
appointment of a special administrator for the estate of his
deceased father (Estate), Byong Tae Oh (Decedent), over the
objection of Respondents-Appellants Hie Sung Lee, Hyung Kee Oh,
and Heinjoo Oh, Decedent's surviving spouse, son and daughter,
respectively (collectively, Respondents). Respondents appeal
from the Order Discharging Special Administrator and Awarding
Fees and Costs (Order) and the Judgment on Order Discharging
Special Administrator and Awarding Fees and Costs (Judgment),
both entered on January 18, 2019, by the Circuit Court of the
First Circuit sitting in probate (Probate Court).1/
On appeal, Respondents contend that the Probate Court
erred in: (1) ordering that the fees and expenses of the special
administrator, and the attorneys' fees of Respondents and
Petitioner, be paid from the Estate, where the court lacked
jurisdiction over the Estate; (2) failing to order that

1/
The Honorable R. Mark Browning presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Petitioner pay the special administrator's fees and costs; and
(3) ordering that Petitioner's attorneys' fees be paid from the
Estate, even if the court had jurisdiction to do so.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Respondents' contentions as follows.

I. Background

Decedent died in the Republic of Korea in February
2012. At the time of his death, Decedent was domiciled in the
Republic of Korea.
On April 4, 2017, Petitioner filed a Petition for
Appointment of Special Administrator (Petition) in the Probate
Court. Petitioner sought appointment of a special administrator
in Hawai#i:

to identify any and all accounts, real property or other
tangible or intangible, real or personal property of the
Decedent, including those held by any agent of the Decedent,
located in Hawaii that should be or should have been
reported on Decedent's United States federal estate or gift
tax returns or any other estate or gift tax or similar
return required to be filed in another jurisdiction, either
as assets of the estate of the Decedent or as reportable
lifetime gifts by the Decedent, including, without
limitation receiving copies of statements for bank accounts
with First Hawaiian Bank or other bank with a Hawaii office
held [by] the Decedent during life or at death, and
including, without limitation, obtaining information
necessary to determine whether Hawaii real property held by
others where funds for the purchase and/or maintenance of
same came from the Decedent were held by the others as agent
for the Decedent, or whether the amounts paid by the
Decedent to purchase or maintain Hawaii property held by
others were taxable gifts to the owners of record.

Petitioner alleged that Decedent owned property within the First
Circuit at the time of his death.
Respondents filed an objection to the Petition,
asserting in part that they were not aware of any assets of the
Decedent that would be subject to probate in Hawai#i, and
appearing to challenge Petitioner's allegation that Decedent
owned property within the First Circuit.
On September 12, 2017, the Probate Court entered an
Order Granting in Part and Continuing in Part Petition for

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Appointment of Special Administrator. The Court appointed Estate
Administrative Services, LLC, by its principal, Stephen E.
Harris, to serve as special administrator, with powers "to locate
or identify assets located in the State of Hawai[#]i that would
be subject to the [D]ecedent's probate estate, as defined in
[Hawaii Revised Statutes (HRS)] § 560:2-201.2/"
On December 15, 2017, Petitioner filed an ex parte
petition in the Circuit Court of the First Circuit (Ex Parte
Petition), which initiated a separate, special proceeding to
request issuance of a subpoena duces tecum upon the Custodian of
Records of First Hawaiian Bank (FHB).3/ Petitioner was allegedly
concerned that Respondents were attempting to conceal Hawai#i
assets at FHB which, while not subject to probate in Hawai#i,
would impact the amount of Petitioner's inheritance under Korean
law, and could give rise to potential gift or estate tax
obligations of Decedent.
The Ex Parte Petition was granted and the court
directed issuance of a subpoena duces tecum (Subpoena) on FHB.
Respondents filed a motion to quash the Subpoena, which was
denied.
Pursuant to the Subpoena, Petitioner obtained a copy of
a FHB statement for a joint account held by Decedent at the time
of his death. However, the special administrator was unable to
locate any assets of Decedent subject to probate in Hawai#i
(i.e., "probate assets"), which the special administrator
reported to the Probate Court.
The Probate Court subsequently entered the Order and
Judgment, which discharged the special administrator and ordered
that the fees and costs of the special administrator, and the
attorneys' fees and costs of Respondents and Petitioner, be paid
from the Estate.

2/
HRS § 560:2-201 (2006) provides that "[i]n this part[,] i.e., HRS
chapter 560, art. II, part 2, "'[p]robate estate' means property that would
pass by intestate succession if the decedent died without a valid will."
3/
The Honorable James H. Ashford presided over the special
proceeding.

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Further, on April 16, 2019, the court entered its
Findings of Fact and Conclusions of Law (FOFs/COLs) regarding
this matter.

II. Discussion

A. The Probate Court's Jurisdiction

Respondents contend that the Probate Court lacked
jurisdiction over the Estate, because the Decedent was not
domiciled in Hawai#i, and the court — through the special
administrator's investigation and report — determined that
Decedent had no probate assets in Hawai#i. According to
Respondents, "[o]nce the [P]robate [C]ourt determined that there
were no assets subject to probate in Hawai#i, . . . it should
have dismissed the case." Instead, Respondents contend, the
Probate Court, without jurisdiction, erroneously ordered that the
fees and expenses of the special administrator, and the
attorneys' fees of Respondents and Petitioner, be paid from the
Estate.
HRS chapter 560 codifies Hawaii's version of the
Uniform Probate Code. See HRS § 560:1-101 (2006). HRS §§ 560:1-
301 (2006) and 560:1-302 (2006) set forth the territorial
application of chapter 560 and the subject matter jurisdiction of
the probate court. Under HRS § 560:1-302(a), the probate court
has jurisdiction, "[t]o the full extent permitted by the
Constitution," over "all subject matter relating to[,]" among
other things, "[e]states of decedents . . . ."4/ Under HRS
§ 560:1-301(1) and (2), chapter 560 applies to, among other
things, "[t]he affairs and estates of decedents . . . domiciled
in this State" and "[t]he property of nonresidents located in
this State or property coming into the control of a fiduciary who
is subject to the laws of this State[.]"5/ See Estate of Von

4/
HRS § 560:1-201 (2006) defines "[e]state" as follows: "'Estate'
includes the property of the decedent, trust, or other person whose affairs
are subject to this chapter as originally constituted and as it exists from
time to time during administration."
5/
HRS § 560:1-201 defines "[p]roperty" as follows: "'Property'
includes both real and personal property or any interest therein and means
anything that may be the subject of ownership."

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Baravalle, No. CAAP-XX-XXXXXXX, 2019 WL 762406, at *1 (Haw. App.
Feb. 12, 2019) (SDO) (ruling in the case of a non-domiciliary
decedent that "Chapter 560 provides for extra-territorial subject
matter jurisdiction of the Probate Court over property coming
into the control of a fiduciary"). Further, HRS § 560:3-614(2)
specifically authorizes the probate court, upon petition from an
interested person and after proper notice and a hearing, to
appoint a special administrator where such an appointment "is
necessary to preserve the estate or to secure its proper
administration . . . ."6/
Here, there is no dispute that Decedent was not
domiciled in Hawai#i. The issue in the first instance is whether
the Probate Court had subject matter jurisdiction over "the
property of [Decedent] located in [Hawai#i]" as the basis for
appointment of the special administrator. Respondents argue that
as to nonresident decedents, the probate court has jurisdiction
over only those assets that the decedent possessed in Hawai#i and
that are subject to probate in Hawai#i, not other assets such as
jointly held bank accounts that are not subject to probate.
Under Respondents' theory, because the FHB joint account was not
part of the Estate, it could not serve as a basis for the Probate
Court's jurisdiction, and the court lacked jurisdiction to do
anything further than dismiss the case.7/
The plain language of HRS §§ 560:1-301 and 560:1-302
does not support Respondents' theory. The Probate Court's
subject matter jurisdiction extends to "[t]he property of

6/
Accordingly, Hawai#i Probate Rules (HPR) Rule 56 provides that
"[a]n interested person may seek appointment of a special administrator where
necessary to preserve the estate or to secure its proper administration,
including . . . where: (a) the existence of assets to be probated is
uncertain, and an administrator is required to locate or identify assets,
including investigating the merits of pursuing a lawsuit or claim for
relief[.]" (Formatting altered.) The commentary to HPR Rule 56 further states
that "the most common situations giving rise to the appointment of a special
administrator" include "the appointment of a special administrator to track
down assets, since many times financial institutions are reluctant to release
information about a deceased's assets except to a court-appointed official."
7/
Somewhat paradoxically, Respondents also argue that "the probate
court's initial order appointing the special administrator was proper, because
it looked to investigate whether there were assets subject to probate[,]" and
"because '[a] court always has jurisdiction to determine whether it has
subject matter jurisdiction[.]' State v. Alagao, 77 Hawai #i 260, 262, 883
P.2d 682, 684 (App. 1994)."

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[Decedent] located in this State . . . [.] HRS §§ 560:1-301(2).
The language of HRS § 560:1-301 and the definition of "property"
under HRS § 560:1-201 do not limit the court's jurisdiction to
only those assets of Decedent that are subject to probate in
Hawai#i. See also HPR Rule 56(a) and (b) (providing for
appointment of a special administrator where (a) "the existence
of assets to be probated is uncertain" and (b) "no probate assets
exist"). Accordingly, the Probate Court had subject matter
jurisdiction to appoint the special administrator "to locate or
identify assets located in the State of Hawai[#]i that would be
subject to the [D]ecedent's probate estate, as defined in HRS
§ 560:2-201."8/
With jurisdiction to appoint the special administrator,
the Probate Court also had subject matter jurisdiction to award,
in appropriate circumstances: (1) the special administrator's
fees and costs from the Estate; see HRS § 560:3-719 (2006)
(providing that "[a] personal representative is entitled to
reasonable compensation for the personal representative's
services"); HRS § 560:1-201 (defining "personal representative"
to include a "special administrator"); HPR Rule 59 ("Unless
otherwise agreed between the special administrator and heirs or
beneficiaries of an estate, the court shall set the compensation
of a special administrator in the manner set forth under HRS
§ 560:3-719."); see also HRS § 560:3-720 (2006) ("If any 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."9/);
and (2) the parties' fees and costs from the Estate; see In re
Estate of Campbell, 46 Haw. 475, 522-23, 382 P.2d 920, 953-54

8/
Respondents' reliance on In re Estate of Marcos, 88 Hawai #i 148,
963 P.2d 1124 (1998), is misplaced. There, the supreme court ruled that
"because the Marcos Estate owned no assets in Hawai #i, there was no basis for
opening a probate proceeding in Hawai#i and no grounds for appointing a
special representative." Id. at 157, 963 P.2d at 1133. Here, the special
administrator was appointed to determine whether Decedent had assets in
Hawai#i that were subject to probate, not in connection with opening probate.
9/
HRS § 560:3-720 has been amended, effective June 29, 2023.

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(1963).10/ Whether such fees and costs were properly charged to
the Estate in the circumstances of this case is discussed below.

B. Award of the Special Administrator's Fees and Costs

Respondents contend that the Probate Court erred in
failing to order that Petitioner pay the special administrator's
fees and costs. Respondents predicate this argument on their
contention that the Probate Court lacked jurisdiction to bind the
Estate after the special administrator concluded there were no
assets subject to probate in Hawai#i. Because we have rejected
Respondents' jurisdictional argument (see supra), we likewise
conclude that Respondents' second contention is without merit.11/

C. Award of Petitioner's Attorneys' Fees

Respondents contend that the Probate Court erred in
ordering that Petitioner's attorneys' fees be paid from the
Estate, even if the court had jurisdiction to do so. Respondents
argue that "[t]here is no authority to shift attorneys' fees in
the special proceeding before Judge Ashford [for issuance of the
Subpoena], and that proceeding — not the probate court proceeding
— is the source of Petitioner's claim that he benefitted the
Estate." Respondents also argue that the FOFs/COLs do not
articulate how the Petitioner's actions benefitted the Estate.
We conclude that the Probate Court's FOFs/COLs, read in
their entirety, provided sufficient support for the award of
attorneys' fees and costs to both Petitioners and Respondents.

III. Conclusion

For the reasons discussed above, we affirm the Order
Discharging Special Administrator and Awarding Fees and Costs and

10/
We further conclude that FOFs 9-15 and 19 are not clearly
erroneous and COLs 1-11 and 13 are not wrong.
11/
We also note that in FOF 13, the court found that "[a]ppointment
of a special administrator would benefit Petitioner, Respondents, and
Decedent's Estate by helping to determine the nature and extent of Decedent's
assets located in Hawaii at the time of Decedent's death and the extent of
Decedent's U.S. tax liabilities." (Emphasis added.) Respondents challenge FOF
13 to the extent that it "makes an erroneous decision regarding the probate
court's jurisdiction." As stated above, we conclude that FOF 13 is not
clearly erroneous.

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the Judgment on Order Discharging Special Administrator and
Awarding Fees and Costs, both entered on January 18, 2019, by the
Circuit Court of the First Circuit sitting in probate. Because
this court has properly exercised jurisdiction over this appeal,
Respondents' pending motion to confirm jurisdiction, filed on
May 2, 2019, is dismissed as moot.

DATED: Honolulu, Hawai#i, February 16, 2024.

On the briefs:
/s/ Katherine G. Leonard
Edmund K. Saffery, Acting Chief Judge
Rosemarie S.J. Sam, and
Deirdre Marie-Iha
(Goodsill Anderson Quinn & /s/ Keith K. Hiraoka
Stifel, A Limited Liability Associate Judge
Law Partnership LLP)
for Respondents-Appellants.
/s/ Clyde J. Wadsworth
Douglas C. Smith and Associate Judge
Ross Uehara-Tilton
(Damon Key Leong Kupchak
Hastert)
for Petitioner-Appellee.

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