In re: The Estate of Samuel Malanao Blancaflor ( 2022 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-DEC-2022
08:02 AM
Dkt. 143 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
THE ESTATE OF SAMUEL MALANAO BLANCAFLOR, Deceased.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(P. NO. 15-1-0214)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and McCullen, JJ.)
Petitioners-Appellants Rico A. Blancaflor, Gia B.
Ramos (Gia), Jaime A. Blancaflor, Edgardo A. Blancaflor, and
Mamerto A. Blancaflor (collectively Objectors) appeal from the
Circuit Court of the Second Circuit's (probate court) amended
judgment and several other decisions. 1
1 The Honorable Peter T. Cahill presided. Objectors appeal from the
following:
(1) The November 26, 2016 Findings of Fact, Conclusions of
Law Regarding Decedent's Domicile in Hawai‘i;
(continued . . .)
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In 2014, Decedent Samuel Malanao Blancaflor (Decedent)
executed a trust (2014 Trust) and pourover will (2014 Will).
The 2014 Trust divided Decedent's estate among five of his eight
children; named his daughter, Sonia B. Taimanao (Sonia), as
successor trustee; and specifically stated that he "has
purposefully left out children, Mert A. Blancaflor, Gia B. Ramos
and James A. Blancaflor." About a year later, Decedent's
sibling, Nida Temperante (Nida) witnessed Decedent sign a note
(Note) purporting to revoke his 2014 Will while in his hospital
bed in the Philippines.
Following Decedent's death, Sonia filed for formal
determination of testacy, which Objectors opposed. Ultimately,
(. . . continued)
(2) The July 5, 2017 Court's Findings of Fact, Conclusions
of Law Regarding Decedent's Last Will and Testament
(Will Findings and Conclusions);
(3) The July 10, 2017 Judgment on Court's Findings of Fact,
Conclusions of Law Regarding Decedent's Last Will and
Testament[,] Order Filed July 5, 2017;
(4) The July 14, 2017 Amended Judgment on Court's Findings
of Fact, Conclusions of Law Regarding Decedent's Last
Will and Testament[,] Order Filed July 5, 2017;
(5) The August 29, 2017 Order Denying Petitioners/
Objectors' Non-Hearing Motion to (1) Alter or Amend the
Amended Judgment Filed on July 14, 2017[,] (2) Certify
for Appeal the Findings of Facts, Conclusions of Law
Regarding Decedent's Domicile in Hawaii, Filed
November 21, 2016; and
(6) The September 7, 2017 Order Denying Petitioners/
Objectors' Non-Hearing Motion for Reconsideration of
Court's Findings of Fact, Conclusions of Law Regarding
Decedent's Last Will and Testament Filed July 5, 2017
(Filed July 12, 2017).
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the probate court determined that the Note was not a will and
did not revoke the 2014 Will. On appeal, Objectors raise two
points of error, and challenge several findings of fact (FOF)
and conclusions of law (COL).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
points of error and arguments as discussed below, and affirm.
(1) In their first point of error, Objectors contend
that the probate court abused its discretion by refusing "to
postpone the evidentiary hearing on the revocation note, despite
a change of counsel shortly before the scheduled date, while
discovery, including depositions, remained pending." Objectors
argue that the refusal to continue the evidentiary hearing
resulted in the loss of testimony by Decedent's brother, Eliseo
Blancaflor (Eliseo), which was highly prejudicial to Objectors.
In State v. Williander, the Hawai‘i Supreme Court held
"the relevant factors to consider in evaluating whether a motion
for continuance should be granted are: (1) whether counsel
exercised due diligence in seeking to obtain the attendance of
the witness; and (2) whether the witness provides relevant and
material testimony that benefits the defendant." 142 Hawai‘i
155, 163-64, 415 P.3d 897, 905-06 (2018). See also State v.
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Villiarimo, 132 Hawai‘i 209, 223, 320 P.3d 874, 888 (2014)
(Nakayama, J., concurring) (explaining that the Hawai‘i Supreme
Court has used due diligence and materiality factors to
determine whether the trial court abused its discretion in
denying a motion to continue to obtain testimony of a witness).
A trial court's decision to grant or deny a motion to
continue is reviewed for an abuse of discretion. Onaka v.
Onaka, 112 Hawai‘i 374, 378, 146 P.3d 89, 93 (2006); see Amfac,
Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d
10, 26 (1992) (noting abuse of discretion occurs if the trial
court has "clearly exceeded the bounds of reason or disregarded
rules or principles of law or practice to the substantial
detriment of a party litigant"); Ek v. Boggs, 102 Hawai‘i 289,
294-95, 75 P.3d 1180, 1185-86 (2003) ("Furthermore, the burden
of establishing abuse of discretion is on appellant, and a
strong showing is required to establish it.") (citation,
internal quotation marks, and brackets omitted).
Here, the March 28, 2017 motion to continue merely
stated that "Objectors respectfully request a continuance of the
evidentiary hearing to depose the following individuals in the
Philippines and Hawaii: . . . Eliseo Malanao Blancaflor . . . ."
The declaration and exhibits attached to the March 28, 2017
motion did not provide an offer as to Eliseo's expected
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testimony or its relevancy, or efforts to obtain his testimony.
And the Objectors presented no additional arguments or
information during the March 31, 2017 hearing on their motion to
continue.
In a previous motion to continue, filed nearly a year
earlier in April 2016, Objectors requested a continuance stating
that "key witnesses are unable to fly to Maui to testify at the
Evidentiary Hearing" and listing Eliseo among others. The April
2016 motion explained that Eliseo, "the brother of the Decedent
and an attorney in the Philippines, is unable to fly to Maui and
testify at the Evidentiary Hearing due to health issues." This
motion did not indicate the substance or relevancy of Eliseo's
expected testimony.
In a December 12, 2015 "Attestation letter," Nida
stated that on May 7, 2015, Decedent had her look for the Note,
and "Manong Ely who was with Manong Sammy earlier during the day
went home already for he did not want to be caught by night
fall." Nida further stated, "As I read what was written on the
piece of paper Manong Sammy said to me 'Anyway that will be
formalized by Eli.'"
Notably, this letter was not provided with Objectors'
March 28, 2017 motion to continue, and did not establish that
Eliseo was present when the Note was drafted or that Eliseo
could testify about whether Decedent wrote material portions of
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the Note. Considering Decedent's health predicament, strikingly
absent from Nida's letter is any mention of Eliseo formalizing
or attempting to formalize the Note between May 7, 2015 when
Nida first saw the Note in the hospital and July 2, 2015 when
Decedent flew to Guam escorted by his physician. Instead,
Nida's letter shows that Objectors had over fifteen months to
preserve Eliseo's testimony or identify his expected testimony
to present to the probate court, but did not.
In sum, Objectors did not support their March 28, 2017
motion by showing Eliseo would "provide[] relevant and material
testimony that benefits" them. Williander, 142 Hawai‘i at 163,
415 P.3d at 905. Objectors also did not provide information in
their March 28, 2017 motion to show that they "exercised due
diligence in seeking to obtain" Eliseo's attendance or to
preserve his testimony. Id. Without a proffer as to the
relevance and materiality of Eliseo's testimony and the efforts
made to obtain Eliseo's attendance or to preserve his testimony,
we cannot say the probate court abused its discretion in denying
Objectors' March 28, 2017 motion to continue.
(2) In their second point of error, Objectors contend
that the probate court "erred in its decision regarding the
revocation Note," arguing that the court misinterpreted Hawaii
Revised Statutes (HRS) §§ 560:2-502, 560:2-503, and 560:2-507
(2006).
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In reviewing a will, appellate courts must determine
the intention of the testator from the words within the will.
Tr. Created Under the Will of Damon, 76 Hawai‘i 120, 127, 869
P.2d 1339, 1346 (1994). Further, "a heightened level of proof
[is] applicable to the disavowment of a duly-executed legal
instrument." In re Ishida-Waiakamilo Legacy Tr., 138 Hawai‘i 98,
104, 377 P.3d 39, 45 (App. 2016) (noting clear and convincing
evidence standard applies when trustor seeks equitable relief
"from the clear and unambiguous terms of a trust instrument on
the grounds of mistake of fact or law").
(a) First, HRS § 560:2-502 sets forth the requirements
for a valid will:
(a) Except as provided in subsection (b) and in sections
560:2-503, 560:2-506, and 560:2-513, a will must be:
(1) In writing;
(2) Signed by the testator or in the testator's name
by some other individual in the testator's
conscious presence and by the testator's
direction; and
(3) Signed by at least two individuals, each of whom
signed within a reasonable time after the
individual witnessed either the signing of the
will as described in paragraph (2) or the
testator's acknowledgment of that signature or
acknowledgement of the will.
(b) A will that does not comply with subsection (a) is
valid as a holographic will, whether or not witnessed,
if the signature and material portions of the document
are in the testator's handwriting.
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(c) Intent that the document constitute the testator's will
can be established by extrinsic evidence, including, for
holographic wills, portions of the document that are not
in the testator's handwriting.
HRS § 560:2-502 (formatting altered). Furthermore,
To serve as a will, a holographic instrument must
demonstrate that the testator had a testamentary intent and
that intent must be clearly expressed in the handwritten
portion. A holographic will, like any will, must manifest
the testator's intent of making a last and final
disposition of his or her property. A testamentary intent
must accompany the performance of the statutory
requirements for a holographic will, and this must be
proven in a manner which conforms to applicable rules of
evidence and procedure.
79 Am. Jur. 2d Wills § 604 (2022) (footnotes omitted).
Here, although the Note was in writing and signed by
Decedent, Nida was the only witness to sign the Note. Thus, the
Note did not meet the requirements of subsection (a) because it
was not "[s]igned by at least two individuals, each of whom
signed within a reasonable time after the individual witnessed .
. . the signing of the will . . . ." HRS § 560:2-502(a).
Turning to subsection (b), the evidence established
that the signature on the Note was in Decedent's handwriting.
However, there was no evidence establishing that Decedent
drafted the Note, and Sonia testified the body of the Note
"doesn't look like his writing." Thus, the evidence supported
the probate court's determination that the Note did not meet the
requirements for a holographic will under subsection (b) because
there was no evidence that "material portions of the document
are in the testator's handwriting." HRS § 560:2-502(b).
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Regarding subsection (c), Objectors state that
subsection "(c) does not immediately come into play, as 'intent'
is not mentioned in part (a) or part (b), but to some extent,
extrinsic evidence, by way of the testimony of Nida and Rustum
Temperante [(Rustum)] establishes the Decedent's intent."
Specifically, Objectors rely on statements by Nida and Rustum
that Decedent "told them that Eli was to formalize the Note --
but [Eliseo's] testimony was unavailable, as a result of the
court's refusal to continue the April 12, 2017 hearing - a
ruling that was highly prejudicial to [their] case."
Again, Objectors provided no offer as to Eliseo's
expected testimony and their efforts to obtain or preserve his
testimony. Testimony that Eliseo was to formalize the Note
could only be extrinsic evidence of intent if the testimony of
certain witnesses was found to be credible. See generally HRS
§ 560:2-502(c); Black's Law Dictionary 732, 1778 (11th ed.
2019). The probate court, however, found that "based upon all
the evidence including the credibility and demeanor of all
witnesses that [Decedent] did not intend to revoke his Will."
FOF 30. See Tamashiro v. Control Specialist, Inc., 97 Hawai‘i
86, 92, 34 P.3d 16, 22 (2001) ("[T]he credibility of witnesses
and the weight to be given their testimony are within the
province of the trier of fact and, generally, will not be
disturbed on appeal.") In addition, when asked if Decedent
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indicated what he intended to do, Nida responded, "No." Thus,
the probate court did not misinterpret HRS § 560:2-502, and did
not err in concluding that Objectors failed to show by clear and
convincing evidence that Decedent intended to replace his 2014
Will.
(b) Next, under HRS § 560:2-503, a document or writing
constitutes a will if there is clear and convincing evidence of
the decedent's intent:
Although a document or writing added upon a document was
not executed in compliance with [HRS §] 560:2-502, the
document or writing is treated as if it had been executed
in compliance with the section if the proponent of the
document or writing establishes by clear and convincing
evidence that the decedent intended the document or writing
to constitute:
(1) The decedent's will;
(2) A partial or complete revocation of the will;
(3) An addition to or an alteration of the will; or
(4) A partial or complete revival of the decedent's
formerly revoked will or of a formerly revoked
portion of the will.
HRS § 560:2-503 (formatting altered); see Kekona v. Abastillas,
113 Hawai‘i 174, 180, 150 P.3d 823, 829 (2006) (clear and
convincing evidence "is that degree of proof which will produce
in the mind of the trier of fact a firm belief or conviction as
to the allegations sought to be established, and requires the
existence of a fact to be highly probable") (citation omitted).
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Nida testified that when she asked about the word
"intestate," Decedent said it meant "let the State decide[,]"
supporting Objectors' position that Decedent intended to revoke
his 2014 Will. But, the probate court did not find this
testimony credible. FOF 26. Also, when asked if Decedent
indicated what he intended to do, Nida responded, "No."
In contrast, the attorney who drafted Decedent's 2014
Will and the 2014 Trust, indicated that Decedent was careful and
deliberate in drafting his estate plan. The attorney testified
that he remembers being pleasantly surprised at how intelligent
Decedent was and that Decedent "filled out his information sheet
with more detail than I've seen any of my other clients fill it
out." The attorney also testified, "[w]e went over why he chose
those five kids. He believed the other three were already
successful." The attorney noted that Sonia objected at the
appointment, saying she "didn't want him to make the plan that
way" and that Gia "would be upset." But, Decedent responded
that "it's his money, so he doesn't care." The probate court
found the attorney's testimony "remarkable and credible."
FOF 8.
Again, credibility determinations are the province of
the probate court and will not be disturbed on appeal. See
Tamashiro, 97 Hawai‘i at 92, 34 P.3d at 22. Based on the record
before this court, the probate court did not err in determining
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that Objectors failed to establish by clear and convincing
evidence that Decedent intended the Note to constitute a
revocation under HRS § 560:2-503.
(c) Finally, HRS § 560:2-507 sets forth the
requirements for revoking a will:
(a) A will or any part thereof is revoked by:
(1) Executing a subsequent will that revokes the
previous will or part expressly or by
inconsistency; or
(2) Performing a revocatory act on the will, if the
testator performed the act with the intent and
for the purpose of revoking the will or part or
if another individual performed the act in the
testator's conscious presence and by the
testator's direction. For purposes of this
paragraph, "revocatory act on the will" includes
burning, tearing, canceling, obliterating, or
destroying the will or any part of it. A
burning, tearing, or canceling is a "revocatory
act on the will", whether or not the burn, tear,
or cancellation touched any of the words on the
will.
(b) If a subsequent will does not expressly revoke a
previous will, the execution of the subsequent will wholly
revokes the previous will by inconsistency if the testator
intended the subsequent will to replace rather than
supplement the previous will.
(c) The testator is presumed to have intended a
subsequent will to replace rather than supplement a
previous will if the subsequent will makes a complete
disposition of the testator's estate. If this presumption
arises and is not rebutted by clear and convincing
evidence, the previous will is revoked; only the subsequent
will is operative on the testator's death.
(d) The testator is presumed to have intended a
subsequent will to supplement rather than replace a
previous will if the subsequent will does not make a
complete disposition of the testator's estate. If this
presumption arises and is not rebutted by clear and
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convincing evidence, the subsequent will revokes the
previous will only to the extent the subsequent will is
inconsistent with the previous will; each will is fully
operative on the testator's death to the extent they are
not inconsistent.
HRS § 560:2-507.
Subsections (a)(1) and (b)-(d) provide for revocation
by a subsequent will, but as discussed above, the Note was not a
will or holographic will. As for subsection (a)(2), "[t]o
revoke a will by act, the testator must perform a revocatory act
on the will with the intent to revoke" like "burning, tearing,
canceling, obliterating, and destroying" the will. Restatement
(Third) of Prop.: Wills & Donative Transfers § 4.1 (Am. Law
Inst. 1999). "Cancellation encompasses acts such as crossing
out or marking through the will or part of it or writing words
on the will such as 'canceled' or 'null and void.'" Id. Here,
there was no evidence that Decedent performed a revocatory act
on the 2014 Will. Thus, the probate court did not err in
determining that HRS § 560:2-507 did not apply.
(3) Although not included within a point of error,
Objectors challenge certain findings 2 and conclusions. See
Hawai‘i Rules of Appellate Procedure Rule 28(b)(4)(C).
2 Objectors challenge as "inaccurate" FOF 22, 25, 26, 28, 30, and
31, which stated as follows:
22. Other than the signature, date, and location of
[Decedent] on the Note, no party submitted any evidence
that [Decedent] actually wrote the Note, understood its
(continued . . .)
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For FOF 22, to show error, Objectors primarily rely on
Nida's "let the State decide" testimony, which the probate court
found not credible. Because we will not disturb the probate
court's credibility finding, Nida's "let the State decide"
testimony does not establish that the probate court erred in
rendering FOF 22.
(. . . continued)
contents and meaning; or that he expressly intended this
Note serve as a holographic will or a revocation in his
estate plan.
. . . .
25. The written and notarized statement conflicts in
several critical aspects with the testimony of Nida and
Rustum offered in court.
26. The Court finds that Nida's testimony that [Decedent]
explained to her that the Note meant to "let the state
decide" is not credible. This testimony is inconsistent
with this Court's finding that [Decedent] had been very
careful and prudent with his financial planning. The Court
further finds that the credible evidence of Mr. Ing shows
that [Decedent] would not defer to "let the state decide,"
especially after he employed an attorney to plan his
estate.
. . . .
28. The Court finds that there is no credible evidence from
any witness to support the contention that the Note is a
holographic will.
. . . .
30. The Court finds based upon all the evidence including
the credibility and demeanor of all witnesses that
[Decedent] did not intend to revoke his Will.
31. The Court finds that the Will offered for probate has
not been revoked.
(Formatting altered.)
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For FOF 25, Objectors take issue with the word
"critical" in: "[t]he written and notarized statement conflicts
in several critical aspects with the testimony of Nida and
Rustum offered in Court." In the notarized December 12, 2015
"Attestation letter," Nida stated that Decedent asked her to
look for the paper "I signed[.]" She testified, however, that
she "saw him sign it." Whether Nida witnessed Decedent sign the
Note is a critical aspect of her testimony because it goes to
providing direct proof of one element of a holographic will,
i.e., that the signature on the Note was Decedent's handwriting.
See HRS § 560:2-502(b). Despite later efforts to rehabilitate
her testimony, there was a conflict between her in-court
testimony and her December 12, 2015 statement.
For FOF 26, 28, and 30, the probate court relies on
credibility determinations, which this court will not disturb.
See Tamashiro, 97 Hawai‘i at 92, 34 P.3d at 22. And for FOF 31,
as discussed above, the probate court did not err in finding
that "the Will offered for probate has not been revoked."
Objectors also argue that COL 6-10 3 were wrong, and
address these conclusions in the context of their argument
3 COL 6-10 state as follows:
6. A holographic will requires the signature and material
portions of the document to be in the testator's
handwriting. HRS § 560:2-502(b). The [c]ourt concludes as
(. . . continued)
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stating, "Rather than repeat the argument above, that the court
fully erred in its decision on the revocation note, [Objectors]
incorporate that argument by reference . . . ." We address
these conclusions in a similar manner and, reiterate that the
(. . . continued)
a matter of law that the Note fails to qualify as a
holographic will because the Objectors failed to prove that
[Decedent] wrote the material portion of the Note in his
own handwriting, and the [c]ourt cannot make such an
independent finding in the absence of evidence.
7. The [c]ourt also concludes as a matter of law that the
Note also fails to qualify as a writing intended as a will
pursuant to HRS §560:2-503 because the statute requires
establishing by clear and convincing evidence that the
[D]ecedent intended the writing to constitute his [W]ill, a
partial or complete revocation of his Will, or a partial or
complete revival of a formerly revoked will. The [c]ourt
concludes as a matter of law that the Objectors failed to
establish by clear and convincing evidence that [Decedent]
intended to replace or revoke his carefully planned and
executed Will with the Note executed on his hospital bed.
8. Finally, a will or any part therefore may be revoked by
either (1) executing a subsequent will that revokes the
previous will or part expressly or by inconsistency, or
(2) performing a revocatory act on the will with the intent
and for the purpose of revoking the will or a part thereof.
HRS [§ ]560:2-507(a).
9. The [c]ourt concludes as a matter of law that because
the Objectors have failed to meet their burden of proof the
Note cannot be accepted as a later will. Nor did Objectors
offer any credible evidence indicating . . . [Decedent] had
performed a revocatory act on the Will. The Note is not a
revocation of [Decedent's] Will.
10. The [c]ourt concludes as a matter of law that the
Objectors have not met their burden by establishing prima
facie proof that [Decedent] wrote those portions of the
[N]ote that might constitute substantive changes to his
estate plan.
(Formatting altered.) We note that the COL challenged in Objectors'
brief are misnumbered.
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probate court did not err in determining the Note did not revoke
Decedent's 2014 Will.
For the above reasons, we affirm the orders and
judgments from which Objectors appeal.
DATED: Honolulu, Hawai‘i, December 16, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Robert E. Chapman,
Reginald K.T. Yee, and /s/ Clyde J. Wadsworth
Mary Martin, Associate Judge
(Clay Chapman Iwamura Pulice
& Nervell), /s/ Sonja M.P. McCullen
for Petitioners-Appellants. Associate Judge
Deborah K. Wright,
Keith D. Kirschbraun, and
Douglas R. Wright
(Wright & Kirschbraun)
For Petitioner-Appellee
Sonia B. Taimanao.
Lisa Strandtman,
Jason M. Tani, and
Bryan M. Harada,
(Rush Moore),
for Beneficiary-Appellee
Jocelyn B. Untalan.
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