CourtListener 10865897

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-MAY-2026
07:53 AM
Dkt. 88 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

IN RE TRUST AGREEMENT OF KARL KRIEG, Settlor,
(CASE NO. 3CTR-XX-XXXXXXX)
___________________

IN THE MATTER OF MARGUERITE KRIEG REVOCABLE
TRUST AGREEMENT, DATED DECEMBER 28, 1993
(CASE NO. 3CTR-XX-XXXXXXX)

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.)

Respondent-Appellant Alexander Krieg (Alexander)

appeals from the: (1) July 11, 2023 "Findings of Fact,

Conclusions of Law, and Order Granting Petitioner[-Appellee]

Eric Karl Krieg's [(Eric)] Motion for Summary Judgment on

Petition for Instructions and Relief for Breach of Trust, Filed

February 9, 2022 [Dkt. 24] and Order Denying the Motion for

Summary Judgment of [Alexander], as the Successor Trustee of the

Karl Krieg [(Karl)] Revocable Trust Agreement [(Karl's Trust)]
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Dated December 28, 1993, as Amended Filed April 21, 2023 [Dkt.

140]" (Summary Judgment Order); (2) October 19, 2023 "Order

Granting [Eric's] Request for Attorneys' Fees and Costs Against

[Karl's Trust]" (Attorneys' Fees Order); (3) October 19, 2023

"Final Judgment on Order Granting [Eric's] Motion for Summary

Judgment on Petition for Instructions and Relief for Breach of

Trust, Filed February 9, 2022"; and (4) July 26, 2024 "Amended

Final Judgment as to All Claims and All Parties" (Final

Judgment), entered by the Circuit Court of the Third Circuit 1

(probate court).

In December 1993, Karl and his wife, Marguerite Krieg

(Marguerite), separately executed revocable trust agreements:

Karl's Trust, and the "Marguerite Krieg Revocable Trust

Agreement dated December 28, 1993" (Marguerite's Trust). At the

time of their execution, Karl's Trust and Marguerite's Trust

were "A-B Trusts" that included mirror trust provisions.

In July 1999, Karl and Marguerite each conveyed to

their respective Trusts an undivided one-half fee simple

interest, as tenants in common, in their Kailua-Kona residence

(Real Property). The conveyance was executed by the "Apartment

Deed to Trustees" (Apartment Deed) that was filed with the State

of Hawaiʻi Bureau of Conveyances.

1 The Honorable Robert D.S. Kim presided over this matter. The
Honorable Kimberly B.M. Tsuchiya entered the July 26, 2024 Final Judgment on
temporary remand.

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Karl became successor trustee of Marguerite's Trust

upon her passing in June 2017. Pursuant to the terms of

Marguerite's Trust: Marguerite's Trust became irrevocable upon

Marguerite's passing; as successor trustee, Karl was to hold and

administer the residuary trust estate as the "Family Trust"; and

Karl was entitled to all net income of the trust for his

lifetime. The principal of Marguerite's Trust could only be

utilized as the trustee determined to be "necessary" for Karl's

"support, maintenance, and health."

Upon becoming successor trustee, Karl proceeded to

transfer the principal of Marguerite's Trust -- i.e.,

Marguerite's one-half interest in the Real Property and

Marguerite's Merrill Lynch account -- as well as items of

Marguerite's personal property, into Karl's Trust (July 2017

Transfers). Karl then amended Karl's Trust to provide for the

distribution of the assets to Alexander, with "no bequest or

devise" for Eric.

Karl passed in April 2021. Upon Karl's passing,

Alexander became the successor trustee of Karl's Trust, and the

successor in interest of Karl's estate. It appears undisputed

that Eric learned for the first time of the July 2017 Transfers,

and the subsequent amendments to Karl's Trust, in May 2021. In

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February 2022, Eric filed a "Petition for Instructions and

Relief for Breach of Trust." 2

In April 2023, Alexander and Eric filed cross-motions

for summary judgment. Alexander alleged that "[t]he presumption

in favor of the regularity and good faith of [Karl's] action

continues and is confirmed by the record," and that "Eric . . .

acquiesced in his father [Karl's] action, waived and

relinquished his claims as a contingent, remainder beneficiary

of [Marguerite's] trust estate." Eric alleged, inter alia, that

Karl had breached his fiduciary duties as successor trustee of

Marguerite's Trust, and requested that the probate court

"rescind[] and revoke[]" the July 2017 Transfers.

The probate court ordered the following:

1. [Eric's] Motion for Summary Judgment filed April
27, 2023, is GRANTED. The [probate court] finds and
concludes that there is no genuine issue of material fact,
and that movant is entitled to judgment as a matter of law.
In granting the motion the court enters the following
orders, consistent with this ruling.

2. The "Successor Trustee's Deed" executed on July
22, 2017, recorded in the Bureau [of Conveyances] as Doc
No(s) A-64700453, is hereby voided and all right, title and
interest, together with the reversions, remainders, rents,
issues and profits thereof, from the date of this order, in
the undivided FIFTY PERCENT (50%) interest in the [Real
Property], previously held by Marguerite's Trust, is hereby
determined to be vested in [Eric] and [Alexander],

2 In February 2022, Eric also filed a petition to be appointed
successor trustee of Marguerite's Trust in related case no. 3CTR-XX-XXXXXXX.
Case no. 3CTR-XX-XXXXXXX was consolidated with the underlying case no. 3CTR-
XX-XXXXXXX for purposes of an evidentiary hearing only. The evidentiary
hearing, which was calendared for September 26, 2022, was continued, and the
probate court subsequently resolved the underlying matter on the parties'
cross-motions for summary judgment without an evidentiary hearing. No final
judgment has been entered in 3CTR-XX-XXXXXXX, and that matter remains pending
before the probate court.

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individually, as a fee simple undivided one half (1/2)
interest each, as tenants in common, pursuant to the terms
of [Marguerite's Trust].

3. That [Eric's] reasonable attorneys' fees and costs
for having to bring this action or in connection with this
proceeding and as related to the entry of this order shall
be paid from Karl's Trust. Counsel for [Eric] shall file
the appropriate application with supporting documents to
obtain such relief.

4. The Motion for Summary Judgment of [Alexander], as
the Successor Trustee of [Karl's Trust], filed April 21,
2023 [Dkt. 140], is hereby DENIED.

(Emphasis added.)

The probate court entered final judgment, and

Alexander appealed. Alexander contends that the probate court

erred in granting summary judgment in Eric's favor, and in

determining that Eric is entitled to half of Marguerite's fifty

percent interest in the Real Property. 3 Upon careful review of

the record, briefs, and relevant legal authorities, and having

given due consideration to the arguments advanced and the issues

raised by the parties, we resolve Alexander's contentions of

error as follows.

3 Alexander's opening brief sets forth various "assignments of
error," contending that the probate court erred: (1) by "fail[ing] to make
findings and conclusions"; (2) by disregarding the "existence of genuine
issues of material fact"; (3) with regard to various "mixed findings and
conclusions"; (4) with regard to various "conclusions of law"; (5) by
entering judgment against Alexander, and awarding attorneys' fees and costs
to Eric; and (6) in denying Alexander's motion for summary judgment.
(Formatting and capitalization altered.) These assignments of error are not
compliant with Hawaiʻi Rules of Appellate Procedure Rule 28. We consolidate
and reorder Alexander's contentions herein.

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We review the probate court's Summary Judgment Order

de novo, applying the same standard applied by the probate

court:

[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and the inferences drawn therefrom
in the light most favorable to the party opposing the
motion.

Hilo Bay Marina, LLC v. State, 156 Hawaiʻi 478, 486, 575 P.3d

568, 576 (2025) (citation omitted).

Alexander argues on appeal that the probate court

erred by failing to: "address the effect of the increased estate

and inheritance tax individual exemption" in interpreting the

directives of Marguerite's Trust; consider the "effect of the

1999 amendment that added the 'sole judgment and discretion'

provision" to Marguerite's Trust; "make findings pertaining to

[Eric's] disclaimer" of his interest in Marguerite's Trust

assets; and "make findings pertaining to [Karl's] personal

financial resources."

At issue in the underlying proceeding was whether Karl

breached his fiduciary duty as successor trustee to Marguerite's

Trust by making the July 2017 Transfers. In order to establish

a breach of fiduciary duty, Eric needed to show,

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(1) a fiduciary relationship existed; (2) [Karl] breached
[his] fiduciary duty to [Eric, as beneficiary of
Marguerite's Trust]; and (3) the breach was the proximate
cause of [Eric's] injury.

Yamaguchi v. Title Guar. Escrow Serv., Inc., No. SCWC-21-

0000097, 2026 WL 789054, at *13 (Haw. Mar. 20, 2026) (citations

omitted). Karl, as trustee, benefits from the presumption of

regularity and good faith, such that "the person questioning the

trustee's action" bears "the burden of overcoming the

presumption, but which requires the trustee ultimately to

justify his action if sufficient evidence is produced to

overcome the presumption." Tr. Created Under the Will of Damon,

140 Hawaiʻi 56, 62, 398 P.3d 645, 651 (2017) (citations omitted).

Marguerite's Trust plainly provides that "[t]he

trustee shall . . . pay to . . . [Karl] such amount or amounts

of principal of the trust as the trustee may determine to be

necessary to provide for [Karl's] support, maintenance, and

health." (Emphasis added.) "A fundamental rule . . . is that

the intention of the settlor as expressed in a trust instrument

shall prevail unless inconsistent with some positive rule of

law." In re Est. of Damon, 109 Hawaiʻi 502, 511, 128 P.3d 815,

824 (2006) (citation omitted). The probate court correctly

declined to consider extrinsic evidence -- i.e., the "increased

estate and inheritance tax individual exemption" -- because the

language of Marguerite's Trust was clear and unambiguous.

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The probate court also correctly determined that

Marguerite's conveyance of her 50% interest in the Real Property

into Marguerite's Trust did not constitute an amendment to

Marguerite's Trust. By its plain terms, Marguerite's Trust

could only "be amended by the settlor by a written instrument

signed and duly acknowledged by both the settlor and the

trustee." The Apartment Deed by which Marguerite conveyed her

interest in the Real Property to Marguerite's Trust did not

"duly acknowledge" an "amendment" to Marguerite's Trust.

Moreover, the probate court correctly determined that

Eric did not disclaim his interests in Marguerite's Trust assets

pursuant to Hawaii Revised Statutes (HRS) § 526-5 (2018).

Alexander produced evidence that Eric made the following

statements with regard to inheritance: "[w]hen my parents pass,

it all goes to my daughters any way- I don't want anything";

"I'm tired of all this fighting and back stabbing. . . . It's

all yours"; and "Dad give it all to [Alexander] or whom ever you

want to, It's all yours." These statements do not meet the

requirements of HRS § 526-5(c) (2018), which provides that,

"[t]o be effective, a disclaimer [of any interest in or power

over property] must be in a writing or other record, declare the

disclaimer, describe the interest or power disclaimed, be signed

by the person making the disclaimer, and be delivered or filed

in the manner provided in section 526-12."

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The probate court did err, however, in determining, at

the summary judgment stage, that there is no "clear and

convincing evidence" in the record to establish that the July

2017 Transfers were "in fact necessary for Karl's support,

maintenance, and health." See Bremer v. Weeks, 104 Hawaiʻi 43,

64, 85 P.3d 150, 171 (2004) (holding that "the circuit court

applied the incorrect [clear and convincing evidence] standard"

because, "[i]n determining whether summary judgment was

appropriate[,] . . . the circuit court was required to view the

evidence in the light most favorable to . . . the non-moving

party." (citation omitted)).

Marguerite's Trust states, in relevant part,

1-8.1. INCOME AND PRINCIPAL DISTRIBUTIONS: Commencing with
[Marguerite's] death, all net income of [Marguerite's
Trust] shall be paid to (or used and applied for the
benefit and account of) [Karl], in convenient installments
at least quarterly, for the lifetime of [Karl]. [Karl, as
successor trustee] shall also pay to (or use and apply for
the benefit and account of) [Karl, as Marguerite's spouse]
such amount or amounts of principal of [Marguerite's Trust]
as [Karl] may determine to be necessary to provide for
[Karl's] support, maintenance, and health. Prior to making
any principal distributions, [Karl] shall have discretion
to take into consideration all other funds available to
said spouse for such purposes. . . .

(Emphasis added.)

The record reflects that Alexander introduced some

evidence, including the "Successor Trustee's Deed" and

"Successor Trustee's Assignment of Trust Assets," to support his

contention that the principal of Marguerite's Trust was

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necessary for Karl's "support, maintenance, and health." The

Successor Trustee's Deed instructs that,

(Emphasis added.) And the Successor Trustee's Assignment of

Trust Assets instructs that, inter alia,

The Successor Trustee of [Marguerite's Trust] has
determined that it is necessary for the support,
maintenance and health of [Karl], the surviving spouse of
[Marguerite], that the principal of the trust be paid and
delivered to said [Karl], specifically any monies, funds
and interests in bank accounts, investment accounts, mutual
funds, stocks and other financial holdings standing in the
name of [Marguerite], as the Trustee of [Marguerite's
Trust].

(Emphasis added.)

Although the record does not reflect that the

transferred principal was actually used by Karl for his support,

maintenance, or health, or why a transfer was necessary because

Karl, as successor trustee, was authorized to invade principal

without first transferring it out of Marguerite's Trust, we

conclude that Alexander's evidence raised a genuine issue of

material fact as to whether Karl's conveyance of the assets was

necessary for Karl's "support, maintenance, and health," and

therefore within Karl's discretion as successor trustee. See

Omerod v. Heirs of Kaheananui, 116 Hawaiʻi 239, 254-55, 172 P.3d

983, 998-99 (2007) (On summary judgment, "we must view all of

the evidence and the inferences drawn therefrom in the light

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most favorable to the party opposing the motion." (citations

omitted)). We therefore conclude that the probate court erred

in granting summary judgment in Eric's favor.

For the foregoing reasons, we affirm in part, and

vacate in part, the Summary Judgment Order, and we vacate the

Attorneys' Fees Order and Final Judgment. We remand for further

proceedings consistent with this summary disposition order. On

remand, we instruct the probate court to conduct an evidentiary

hearing to (1) resolve the genuine issue of material fact

discussed above, and (2) to make appropriate findings of fact

and conclusions of law as to whether Karl's transfer of the

principal of Marguerite's Trust to Karl's Trust was necessary

for Karl's "support, maintenance, and health."

DATED: Honolulu, Hawaiʻi, May 28, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Michael J. Matsukawa,
for Respondent-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Michael S. Zola,
for Petitioner-Appellee. /s/ Kimberly T. Guidry
Associate Judge