IN RE: the ESTATE OF Carmen Corrine HERBERT (1997)

Decedent Carmen Corrine Herbert (Herbert) was born on January 6, 1906.¹  She was widowed in the 1970's.   On April 5, 1973, Herbert executed a will (1973 Will).²  On September 8, 1988, Herbert executed a second will (1988 Will).   On December 20, 1989, Herbert executed a third will (1989 Will).   Herbert died in Honolulu on July 4, 1990.   The next day, on July 5, 1990, petitioner Hanno Soth (Soth) filed his Petition for Probate of Will and Appointment of Personal Representative (July 5, 1990 Petition) seeking to admit Herbert's 1989 Will to probate.³

Contestant-Appellee First Church of Christ Scientist Honolulu (First Church) opposed Soth's July 5, 1990 Petition on the following three grounds:  lack of testamentary capacity, undue influence, and mistake.   First Church asked for a denial of the July 5, 1990 Petition.

On April 23, 1992 in a special verdict, a jury decided that Herbert:  (1) did not have testamentary capacity when she executed the 1989 Will;  (2) was under the undue influence of Soth when she executed the 1989 Will;  and (3) was mistaken as to the nature or contents of the 1989 Will.

Soth appeals the First Circuit Court's May 13, 1992 Judgment denying his July 5, 1990 Petition.   We affirm.

FACTS AND EVIDENCE

Soth was born in Germany on April 5, 1964.   His family moved to Canada in the early 1970's.   He first met Herbert when he came to Hawai‘i in 1984 to attend the University of Hawai‘i.   At the University of Hawai‘i, Soth became friends with David Von Hamm, whose father lived near Diamond Head on the same street where Herbert lived.   Soth left Hawai‘i in 1985 and returned in December 1986 on a six-month tourist visa.   He lived in the Von Hamm residence and, over the course of time, developed a close relationship with Herbert.   In May or June of 1987, he moved into a studio on the Watanabe property, next door to the Von Hamm property.   In July 1988, he moved in with the Larsens “at the end of the street.”

In September 1988, Herbert was taken to Laniolu Care Home (Laniolu) for treatment of an infected leg.   While Herbert was in Laniolu, J. Sterling Adams (Sterling), her long-time friend, contacted attorney Elliot H. Loden, Esq. (Loden), Sterling asked Loden to prepare Herbert's power of attorney, naming himself and Jim Pettus (Jim), another long-time friend, as attorneys-in-fact.   Sterling also asked Loden to draft a will for Herbert and told him what Herbert wanted in it, including the specific bequests and the name of the personal representative.   On September 8, 1988, Herbert executed the 1988 Will. Herbert had been a member of the First Church of Christ Scientist Boston, the “mother church” of First Church, since 1942.   In the 1988 Will, Herbert gave $5,000 to Soth, $10,000 each to five friends, including Sterling and Jim, and the residue of her estate to First Church.   On September 30, 1988, Herbert executed the power of attorney (1988 POA).

In September 1988, John V. Mickey, M.D., diagnosed Herbert as having “[o]rganic brain syndrome secondary to aging,” and “short term memory deficit.”

While Herbert recuperated at Laniolu, Sterling and his wife, Floye Adams (Floye or Mrs. Adams), improved parts of Herbert's home and cleaned it.   Improvements included patching the roof, painting the house, installing a new irrigation system, purchasing new lanai furniture, buying new carpeting, and replacing an oven.   Herbert's funds were used to pay the $30,000 total cost.

Floye hired Linda Parker (Parker) to live with Herbert once Herbert returned home.   Parker did light housekeeping and prepared Herbert's meals.   Herbert expressed to various people her displeasure with having Parker in her house.

After Herbert returned home in February 1989, she progressively became more and more displeased about the changes to her home, her inability to find things, the absence of personal property, and the modification of her stock portfolio.   She also withdrew from her friendship with Jim's wife, Betty Pettus (Betty).

Sterling continued to act as Herbert's attorney-in-fact until his death on September 17, 1989.   After Sterling's death, Herbert withdrew from her friendship with Floye and began to depend on Soth for assistance with her finances and other needs.   Jim remained as Herbert's attorney-in-fact until October 17, 1989 when Herbert executed a Revocation of General Power of Attorney (Revocation) prepared by her neighbor Richard Mirikitani, Esq. (Mirikitani).  Mirikitani testified that he prepared the revocation following a meeting requested by Soth and Herbert in which they inquired about the possibility of Herbert's revoking the 1988 POA.   Mirikitani insisted that Herbert put her desire in writing.   Mirikitani prepared the revocation after receipt of Herbert's written statement that she wanted to ensure that “no one has the Power of Attorney over matters pertaining to my estate with the exception of myself.”

Parker testified, inter alia, that Soth expressed in writing his love and affection for Herbert, that Herbert was infatuated with Soth, that Herbert was upset when informed that Soth was engaged, and that Herbert's understanding was that Soth wanted to break up with his girlfriend but that his girlfriend would not allow him to do so.⁴

Parker also testified that Herbert's memory was not very good when Parker began working for her in January 1989 and that it deteriorated significantly thereafter.   Parker testified on direct examination in relevant part as follows:

Q. Any other examples where she was getting lost?

A. Yeah, she'd be going to-there were very few places that she would drive to-probably three places.   Waialae Country Club, Long's and her church.   And she would get lost going to those places, she would end up out at the airport, she would end up out at [Makapu‘u] Beach.   She was always getting lost.

During Parker's tenure at Herbert's residence, Parker left the residence overnight during only one period of time, from Friday, December 15, 1989, through Sunday, December 31, 1989.   On Monday, December 18, 1989, Herbert executed a power of attorney (1989 POA) written by Soth and naming Soth as her attorney-in-fact.

On December 19, 1989, Soth met with A. Peter Howell, Esq. (Howell), the general counsel for First Church, about drafting a new will for a “wealthy elderly lady,” naming Soth as the beneficiary.   At that time, Soth did not know Howell was the general counsel for First Church.   Howell agreed to write the will but wanted to meet with the testatrix prior to preparing the will.   The record is in conflict over Howell's availability to draft the will.   Soth testified that Howell said he was either busy or going on vacation and would not be able to work on the will until after the new year.   Howell testified that he had no plans for vacation in December and January and did not state that he was going on vacation.   Soth testified that later that day, Herbert directed him to simply copy the 1988 Will and make the changes she desired.

On December 20, 1989, Soth drove Herbert to the Kaimuk Branch of First Hawaiian Bank to execute the 1989 Will.   The 1989 Will was not read or explained to Herbert in front of the witnesses.   Herbert was not questioned in any way.   The witnesses do not remember the signing or that anything unusual occurred during the signing.   The parties stipulated to due execution of the 1989 Will.

Soth testified that he took Herbert to the doctor on February 13, 1990.   Herbert had high blood pressure.   James Pearce, M.D., diagnosed Herbert as having “a mild dementia.”

On February 21, 1990 Herbert wrote the following note:

Hanno

I do not wish to take my medication-Feb. 21st

      Carmen Herbert

On March 7, 1990 Herbert wrote the following note:

      March 7, 1990

I, Carmen Herbert[,] refuse to take medication.

      Carmen C. Herbert

Soth testified that he asked Herbert to write these notes because he “was unhappy that she didn't want to take her medication[,] felt responsible for Carmen as a friend,” and “if something happened because she didn't take her medication, [he] didn't want to be blamed for it” and “didn't want people pointing the finger at [him].”

On June 1, 1990, Soth fired Parker by a written letter, giving her thirty days to leave.   Soth testified that this was done at Herbert's direction.   On July 1, 1990, Parker vacated the premises.

The first time Soth spent the night at Herbert's residence was on July 3, 1990.   On the morning of July 4, 1990, Soth found Herbert dead in her bed.   No autopsy was performed on Herbert's body.   Herbert had no surviving spouse or living relatives.   She left an estate worth $1,628,985.

Soth's July 5, 1990 Petition stated that Soth was a resident of Hawai‘i.

On September 11, 1990, Soth was arrested by the Immigration and Naturalization Service (INS) for overstaying his six-month tourist visa.   On September 12, 1990, Soth filed his application for appointment as Special Administrator of Herbert's Estate.   In it he stated that he was a resident of Hawai‘i.

Soth denied that he knowingly misrepresented his residency status.   He testified, without objection, in relevant part as follows:

I did not knowingly misrepresent this.   My discussions with [my counsel] on both occasions when I first filed for probate, we discussed my residency, and he asked me have I lived in the State of [Hawai‘i], do I now live in the State of [Hawai‘i], and then asked me would that not make me a resident.   And he also indicated to me that the statute had been changed in terms of the requirements for residency, and this was just a standard form that they submitted to the courts.

 * * *

Q. When you were arrested by Immigration and Naturalization Service on September 11th, did you point out to [your counsel] that you were in the country illegally?

A. He was aware of that, yes.

Q. The second pleading was filed on the next day September 12th, in which you claimed you were a resident of the State?

A. That is correct, on September 12th.

 * * *

Q. What ultimately came of your arrest by the Immigration and Naturalization Service?

A. I had a hearing, and it was determined that I did overstay my visa, that my efforts to renew or to get a student visa had failed and I had thirty days to leave the country and get that corrected.   That would mean go back to Canada, physically go back whether for a day or whatever, and then I was able to return without prejudice and apply for the proper visa, which I required in this estate matter, and to act as special administrator.

 * * *

Q. Looking at Plaintiff's 4 A, the certified copy of the Immigration and Naturalization Service records, you see the decision of the immigration judgement?

 * * *

Q. That decision reflects the opinion of the immigration judgement that you were deportable on the grounds alleged in the original arrest warrant, does it not, the first sentence?

A. That is correct.   It does say that I am deportable or was deportable.

Q. How long did you have to leave the country?

A. My recollection is thirty days.

 * * *

Q. That hearing before Judge Chun on November 16, 1990, on your application for appointment as special administrator, occurred eleven days after you had the decision of the Immigration judgement that you had to leave the country by December 5th, did it not?

A. I believe those dates are accurate, yes.

 * * *

Q. Did anybody tell Judge Chun that you had to be out of the country by December 5th?

A. Not to my knowledge.

After further questioning and discussion, counsel for First Church requested:

that the Court take judicial notice of the fact that Judge Chun was not told in the November 16, 1990 hearing, that Mr. Soth was under an order from Immigration-from the Immigration and Naturalization Service, to depart the country by December 5th, 1990.

Over objection, the court granted the request.

The reason Soth gave for seeking a new visa to reenter the United States was “to act as special administrator of the estate.”

In his closing argument at the jury trial in 1992, First Church's counsel summed up some of the relevant evidence as follows:

Finally, let's look at [Soth's] concern over [Herbert's] medical condition.

[Herbert], who was trusting and private, and you heard Mrs. Theaker say when I asked her would [Herbert] do what [Soth] asked and she said-she said she would give him the shirt off her back, he was the only one she trusted.   Let's find out how much she could properly trust him.

 * * *

She's discharged from the hospital the end of January, she has a blood pressure of basically 200 over 100 with a prescription of Procardia, 60 mgs daily.   She comes back to see Dr. Mickey two weeks later, the blood pressure is down 130 over 80 or 170 over 70.   Dr. Mickey testified that normal is 160 over 90.

Dr. Mickey's advice, prescription, continue the medication.   His impression, hypertension, i.e., high blood pressure under reasonable control, organic brain syndrome.

Four days later [Soth] applied to Whittier, he wants to go to law school.   Four days later he has [Herbert] write a note saying I do not wish to take my medication.   A couple weeks later-and [Herbert], incidentally, stops taking her medication.   Couple weeks later he gets a follow[-]up note that she's refusing to take her medication.

This is a lady who would do anything that he asked, give him the shirt off her back, the only one that he [sic] trusted.   Instead of getting her to take her medication, he's getting her to write notes.   Why?  So he won't get blamed if anything happens to her.

Beginning of April he's accepted by Whittier.   End of April he informs Whittier of his intention to come to law school.   Middle of May, oh, we're back to Dr. Mickey, look at the blood pressure, 200 over 90, right back to where we were before she started taking the medication.

What's Dr. Mickey told?   Ran out of the medicine, a little bit less alert on the medicine, so he prescribed 30 mgs, return in three weeks.   His impression hypertension, poorly controlled․

He's not told that for-since February 13th, for almost three months, she's not taking the pills that he had prescribed.   He prescribes more pills.   Prescription was never filled.   He's not told this.

This is the adult male protector that [Herbert] trusted.

June 4th, Whittier sends Soth a letter reminding him, ․ tuition-the second tuition deposit has got to be in our office by July 2nd․

And also, by the way, we see you're a foreign student, we need an affidavit of support.   How are you going to pay for ․ this law school education?

June 5th, return in three weeks, the appointment missed.   Look at [Herbert's] calendar, it's got Dr. Mickey written on it, crossed off.   Look at Dr. Mickey's records, it shows missed the appointment.   Follow[-]up postcard sent, reschedule.   That appointment is never rescheduled.   Instead on July 2nd, we have an appointment because Mr. Reinwald said look, if she's going to write a new trust, I want a doctor to review her first.

So she comes in, she sees Dr[.] Mickey on July 2nd.   Here we've got the blood pressure again, 200 over 90, just like May. Now Dr. Mickey is told, four-and-a-half months after the fact, she stopped the medication․

Two days later [Herbert] dies.   The very next day [Soth] Federal Expresses, ․, overnight mail delivery, that second tuition deposit to Whittier․

 * * *

What was the type of relationship between [Soth] and [Herbert]?   We've heard different testimony about whether or not he might have been trying to lead her on romantically.   Some people saw no evidence of it, some people saw offensive evidence of it.   And maybe it was sometimes and not other times.

In his closing argument, Soth's counsel commented in relevant part as follows:

You can look at this and say [Herbert], it is understandable that you could change your mind on this.   When she had no one after her sister-in-law died, you can understand it.   But when a person came into her life who gave her the companionship, the assistance, the trust that [Soth] did, then you can see why she could easily and quite logically say my decision at this point in my life is to leave the money to-with someone other than the church.

This distinction between who she wanted to leave her property to and her relationship about the church is one that Floye Adams can never understand and probably never will.   And it's not something that I begrudge her for;  she's entitled to that.

But her opinion is hers and she's not entitled to use it to strip [Herbert] of her independent judgment and desire as to how [Herbert] wanted to deal with her estate.   It may be fine for her, but [Herbert] in her-in her years decided otherwise and she shouldn't be robbed of that choice.

They became suspicious of youth.   It's not something that is new to this case.   It's something that's been with us from Day 1. Youth was suspicious.   This young man, [Soth], who she had known for three years somehow couldn't get her estate.

The fact that he did must imply that there is something, you know, evil going on there.   They even suggested to you that because she held hands with him that there must be something more.   They don't understand it and they never will.

And what they seek to do is impose their beliefs on you.   Where everyone else saw friendship and trust and warmth and companionship and honesty, Floye Adams impugned her own suspicions.   And in the end that led to Carmen Herbert's abandonment of them.

The jury returned its special verdict on April 23, 1992.   On May 13, 1992 the circuit court entered its Order Terminating and Removing Special Administrator and its Judgment denying the petition to admit the 1989 Will to probate.

DISCUSSION OF POINTS ON APPEAL 5

I.

Sufficiency of Evidence to Support Verdict

Soth contends that the evidence is insufficient to support the jury's verdicts of testamentary incapacity, undue influence, and mistake.   We conclude that the evidence is sufficient to support each verdict.   The questions whether it is possible to lack testamentary capacity, be under undue influence, and be mistaken, or to lack testamentary capacity and be under undue influence, or to lack testamentary capacity and be mistaken, or to be under undue influence and be mistaken are not points on appeal.

In civil jury cases, “the sufficiency of evidence is not reviewable on appeal unless a motion for a directed verdict pursuant to [Hawai‘i] Rules of Civil Procedure, Rule 50(a) is made in the trial court.” ⁶  Sheraton Hawaii v. Poston, 51 Haw. 142, 148, 454 P.2d 369, 373 (1969).

In his Opening Brief, Soth contends that “[t]he court should not have submitted the case to the jury;  it should have directed the verdict for the proponent.”   The transcript cited is of the proceedings after all the evidence was presented in the case.   It states in relevant part as follows:

[COUNSEL FOR FIRST CHURCH]:  Yes, your Honor․  And I would also like to move the Court ․ for a directed verdict on the basis of lack of capacity, undue influence and mistake․

 * * *

[COUNSEL FOR SOTH]:․

․ We feel that at this particular point in the case that there is no issue of testamentary capacity.

 * * *

On the basis of this evidence before the Court any presumption of undue influence has disappeared and the evidence is unsufficient [sic] to even permit the case to go to the jury.

Assuming the foregoing argument by Soth's counsel is sufficient to constitute motions for directed verdicts, we conclude that the circuit court was right when it denied Soth's motions.

II.

Admissibility of Certain Evidence

Soth asserts that the trial court reversibly erred when it admitted certain evidence.

A.

Non-Expert Opinion Testimony on Herbert's Testamentary Capacity

Soth contends that the trial court abused its discretion in admitting into evidence the non-expert opinions of Parker, Betty, and Mirikitani on Herbert's testamentary capacity.   We disagree.

Parker testified as a witness for First Church on direct examination as follows:

Q. I show you ․ the will signed by [Herbert] on December 20th, 1989․  If that document had been shown to [Herbert] on or before December 15th, 1989, or on or after December 31st, 1989, if you had handed a document like that to her, do you think that she could have read that document and explained to you what it meant?

[Counsel for Soth]:  Objection.   It's so fraught with speculation;  she wasn't even aware of it.

 * * *

THE COURT:  I will overrule the objection.

Q. [Counsel for First Church]:  Could she have read that documents [sic] and explained to you what it meant?

A. I think she would have been able to read it, and I don't think that she would have been able to explain the contents.

 * * *

Q. ․ At that time, which is right around Christmas 1989, based on your having lived with [Herbert] for the 11 prior months, do you think that she had the mental capacity to know the nature and extent of her property?

A. No.

Q. Do you think she had the mental capacity to formulate a rational plan for the distribution of her property?

A. No.

Betty testified that Herbert did not understand the nature and extent of her property and did not have mental capacity to formulate a rational scheme of distribution of her assets.   Betty's testimony was based on her forty-year friendship with Herbert, infrequent visits after Herbert was discharged from Laniolu, and regular telephone conversations.

Upon direct examination by the counsel for First Church, Mirikitani testified in relevant part as follows:

Q. Based on your dealings with Carmen Herbert in the fall of 1989, ․ were you of the opinion that she could understand ․ the will which she signed on December 20, 1989?

A. I'm sorry, I didn't get the question.

Q. Okay.   As you knew Carmen Herbert at that time, did you think she could understand a document such as that?

A. In the fall of '89?

Q. In fall of 1989.

A. No.

[COUNSEL FOR SOTH]:  Your Honor, I'm going to object to that and ask that the answer be stricken.   There is no foundation.

[COUNSEL FOR FIRST CHURCH]:  Your Honor, he said he sees this lady two to five times a week, he talks to her about legal matters, and she talks to him about a new will.   I'm showing him a will and asking if he thinks, based on those observations, if she could understand that.

[COUNSEL FOR SOTH]:  Most of his prior answers have never been categorically.   He said she may have or she could have.   There's been no establishment that she did lack capacity on December 20, 1989.

THE COURT:  I'll overrule the objection, deny the motion.   Weight and effect.

Q. Okay.   Mr. Mirikitani, in your opinion, do you think Carmen Herbert in the fall of 1989 could have understood a document such as that December 20th, 1989 Will?

A. No.

 * * *

Q. Mr. Mirikitani, in the fall of 1989, based on your contacts with Carmen Herbert as her neighbor and as her attorney, did she have sufficient mental capacity to know the nature and extent of her property and the natural objects of her bounty, and to formulate a rational scheme of distribution?

[COUNSEL FOR SOTH]:  Two objections.   Asked and answered and not time specific.

THE COURT:  I'll overrule the objection.

THE WITNESS:  Could you repeat the question?

Q. Sure.   Did Carmen Herbert-let's break it down.   Did Carmen Herbert have sufficient mental capacity to know the nature and extent of her property?   Do you have an opinion on that?

A. My opinion is no.

Q. Did she have sufficient mental capacity to know the natural objects of her bounty?   That's a legal term.   Are you familiar with that term?

A. Yes.   Based upon my conversations with her and her inability to consistently recall what was in her will, my answer would have to be no.

Q. And did she have the mental capacity to formulate a rational scheme of distribution of her property?

A. No.

The admission of opinion evidence lies within the discretion of the trial court, and the court's decision will be overturned only where there has been an abuse of discretion.  State v. Tucker, 10 Haw.App. 73, 89, 861 P.2d 37, 46, recon. denied, 78 Hawai‘i 420, 9 Haw.App. 660, 894 P.2d 117, cert. denied, 75 Haw. 582, 863 P.2d 989, cert. denied, 75 Haw. 582, 895 P.2d 1193 (1993).   The general rule regarding the admissibility of lay opinions as to testamentary capacity is as follows:

In most jurisdictions, a nonexpert who has shown that he [or she] has an opportunity of knowing the condition of testator's mind by association and observation, and who first states facts which justify his [or her] opinion of testator's mental condition, may state his [or her] opinion thereof.

3 Bowe-Parker:  Page on Wills, § 29.50 (1961) (footnote omitted).   In the light of the applicable rule, we conclude that the trial court did not abuse its discretion when it allowed into evidence the non-expert opinions of Parker, Betty, and Mirikitani on Herbert's testamentary capacity.

B.

Admissibility of Parker's Non-Expert Opinion

Soth asserts that Parker's non-expert opinion about Soth's character was inadmissible to prove any of the three issues in this case-testamentary capacity, undue influence, and mistake.   Specifically, Soth questions the relevance of the following part of Parker's testimony as a witness for First Church:

[COUNSEL FOR FIRST CHURCH]:  Your honor, we are getting into questions about his character, and her opinion about his character is admissible in view of the fact that that is an issue in the case.   If I'm not allowed to ask her specifically about his character traits and I am not allowed to ask her about her general observation of his character, then you've precluded me to ask her questions relating to a cause of action which is crucial to my case.

 * * *

[COUNSEL FOR SOTH]:  Your Honor, indicia of his character is not an issue.   What is in issue, by [counsel's] contention, is whether she lacked testamentary capacity or whether he exercised undue influence over her.   The question of character, we submit, is inadmissible.   If he intends to ask that board [sic] a question, we have no idea what she is going to say.   In terms of whether he's a bad person or an evil person, that should have no part in this trial.

THE COURT:  What do you propose to elicit from her in terms of-

[COUNSEL FOR FIRST CHURCH]:  Your Honor, I believe that her testimony will be that she thought he was secretive, methodical, well planned and deceptive-words to that effect.

THE COURT:  What's the basis of that opinion?

[COUNSEL FOR FIRST CHURCH]:  Having been around him for 18 months daily, for the last nine months or so of the time that she was there.   It is lay opinion which I think is admissible, because I disagree with [counsel for Soth]. Character is an issue, because one of the elements of undue influence is his disposition to assert undue influence, and we have to establish that.

This lady saw him on a daily basis around Carmen Herbert.   She is the most observant witness, and if [counsel for Soth] wants to attack that opinion, he's free to do so.

[COUNSEL FOR SOTH]:  If he's talking about specific acts, that's one thing.   But to get up there and elicit from her general opinion that he's deceptive and manipulating and deceiving, I don't think that there is any basis for admissibility.   I think it's under Rule 404, reputation.

 * * *

THE COURT:  I'll permit that question.   And this is over objection.

[COUNSEL FOR SOTH]:  Again, if it's-I don't believe that she is entitled to render an opinion as to his character in using those words, where they are merely conclusory.

THE COURT:  It's weight and effect.

 * * *

THE COURT:  It doesn't go to admissibility.

 * * *

Q. (By [COUNSEL FOR FIRST CHURCH]:) Ms. Parker, having lived with [Herbert] for 17 or 18 months, and having observed [Soth] on at least a daily basis over the last nine or ten months of that period of time, what is your opinion of his character?

 * * *

THE WITNESS:  My opinion of [Soth's] character?

[COUNSEL FOR FIRST CHURCH]:  Yes.

THE WITNESS:  Is that he is cunning;  he is calculating;  he is secretive;  I don't trust him.

The question is whether Parker's opinion testimony that “[Soth] is cunning;  he is calculating;  he is secretive;  I don't trust him[,]” was admissible.   Our answer is “yes.”

1.

We have stated that:

The standard on appeal for review of evidentiary rulings depends on the particular rule of evidence in issue.  Kealoha v. County of Hawaii [Hawai‘i], 74 Haw. 308, 319, 844 P.2d 670, 676 (1993).   Evidentiary rulings are reviewed for abuse of discretion, unless application of the rule admits of only one correct result, in which case, review is under a “right/wrong standard.”  Id.

Kam Fui Trust v. Brandhorst, 77 Hawai‘i 320, 326, 884 P.2d 383, 389 (App.1994).   For example, “[o]n appeal, the circuit court's ruling on the question of whether evidence is relevant under [HRE] Rule 401 is reviewed under the right/wrong standard.  State v. Alston, 75 Haw. 517, 538, 865 P.2d 157, 168 (1994).”  State v. Toro, 77 Hawai‘i 340, 347, 884 P.2d 403, 410 (App.), cert. denied, 77 Hawai‘i 489, 889 P.2d 66 (1994).

Hawai‘i Rules of Evidence (HRE) Rule 401, chapter 626, Hawai‘i Revised Statutes (1993), defines “relevant evidence” as follows:

Rule 401 Definition of “relevant evidence”.  “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

The admissibility of relevant evidence is governed by the following HRE rules (1993 unless otherwise indicated):

Rule 402 Relevant evidence generally admissible;  irrelevant evidence inadmissible.   All relevant evidence is admissible, except as otherwise provided by the Constitutions of the United States and the State of [Hawai‘i], by statute, by these rules, or by other rules adopted by the supreme court.   Evidence which is not relevant is not admissible.

Rule 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.   Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 404 Character evidence not admissible to prove conduct;  exceptions;  other crimes. (a) Character evidence generally.   Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

 * * *

(3) Character of witness.   Evidence of the character of a witness, as provided in rules 607, 608, 609, and 609.1.

(b) Other crimes, wrongs, or acts.   Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.   It may, however, be admissible where such evidence is probative of any other fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.

Rule 405 Methods of proving character. (a) Reputation or opinion.   In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.   On cross-examination, inquiry is allowable into relevant specific instances of conduct.

The Commentary to HRE Rule 404, which, pursuant to HRE Rule 102.1, may be used “as an aid in understanding the rules,” explains the reasoning for prohibiting character evidence:

Character evidence is of slight probative value and may be very prejudicial.   It tends to distract the trier of fact from the main question of what actually happened on the particular occasion.   It subtly permits the trier of fact to reward the good [person] and to punish the bad [person] because of their respective characters despite what the evidence in the case actually showed happened.  [Citations omitted.]

Lee v. Elbaum, 77 Hawai‘i 446, 458, 887 P.2d 656, 668 (App.), recon. denied, 9 Haw.App. 659, 853 P.2d 543 (1993).

We note, however, that the HRE Rule 404 Commentary further states that HRE Rule 404 “does not deal with the situation where the character of a person is itself an element of a claim or defense.”   Moreover, HRE Rule 404 also does not deal with opinion and reputation evidence of the character of a witness.   See HRE Rule 608(a)(1), quoted hereafter.

Rule 608 (1985) 7 Evidence of character and conduct of witness. (a) Opinion and reputation evidence of character.   The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) The evidence may refer only to character for truthfulness or untruthfulness[.]

 * * *

(b) Specific instances of conduct.   Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609 and bias, interest, or motive as provided in rule 609.1, may not be proved by extrinsic evidence.   They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

(Footnote added.)

Rule 701 Opinion testimony by lay witnesses.   If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Thus, Dorothy Theaker (Theaker), a lay witness for Soth, upon examination by counsel for Soth, expressed her own opinion about Soth's character:

Q. From what you knew of [Soth] and how others viewed him, what is your opinion as to [Soth's] character?

A. It is impeccable as far as I am concerned.

Q. Would you ever consider him to be deceitful or dishonest?

A. Never.

Q. He has been described by Linda Parker in her opinion, as being cunning, did you ever see any of that in [Soth]?

A.  No, I never did․

2.

“The function served by jury instructions is to inform the jury of the law applicable to the current case.”  Tittle v. Hurlbutt, 53 Haw. 526, 530, 497 P.2d 1354, 1357 (1972).   In the instant case, the court instructed the jury in relevant part as follows:

Ladies and gentlemen of the jury, it is now my duty as Judge to instruct you in the law that applies to this case.

It is your duty as jurors to follow the law as I shall state it to you, notwithstanding any opinion you may have as to what the law is or should be.

With respect to the material elements of testamentary capacity, undue influence, and mistake, and the burden of proof with respect to them, the circuit court read Court's Instruction No. 18, First Church's Instruction No. 1 (modified), Court's Instruction No. 19 (modified), and First Church's Instruction No. 43 (modified) to the jury as follows:

[Court's Instruction No. 18 ⁸ ]

In this case Proponent [Soth] petitions the Court to admit to probate the will dated December 20, 1989, of decedent [Herbert].   Contestant First Church objects to the petition on three grounds, namely, one, the deceased did not have testamentary capacity when she executed the will on December 20th, 1989;

Or, two, the deceased was under the undue influence of the Proponent when she executed the will on December 20, 1989;

Or, three, the deceased was mistaken as to the nature or content of the will which she signed on December 20, 1989.

The burden is upon the Contestant to prove these allegations by a preponderance of the evidence.

[First Church's Instruction No. 1 (modified) ]

First Church alleges that [Herbert] did not have the testamentary capacity to sign a will on December 20, 1989.   First Church must establish by a preponderance of the evidence that [Herbert] lacked the necessary capacity by showing that she was lacking in at least one of the following.

One, the ability to understand that she was signing a will;  two, the ability to understand and know the nature and extent of her property;  three, the ability to know the natural objects of her bounty;  and, four, the ability to formulate a rational plan for the distribution of her property after she died.

[Court's Instruction No. 19 (modified) ]

To sustain the claim of undue influence it must be proved by a preponderance of the evidence that the influence exercised amounted to fraud or coercion, destroying free agency or the substitution of another's will for that of the testator so that the product is not that of the testator.

[First Church's Instruction No. 43 (modified) ]

First Church alleges that [Herbert] was mistaken as to [the] nature or content of the will which she signed on December 20, 1989.   First Church must prove this allegation by a preponderance of the evidence.

Court's Instruction No. 19 (modified) on undue influence was given by agreement.   This instruction is a restatement of the following statement in Estate of Heeb, 26 Haw. 538, 540 (1922):  “To sustain the claim of undue influence it must appear that the influence exercised amounted to fraud or coercion destroying free agency, or the substitution of another's will for that of the testator so that the product is not that of the testator.”   Thus, it is the law applicable in Herbert's case.

3.

Other states specify more than one method of proving an undue influence claim.   In Wisconsin, for example,

[t]here are two avenues by which an objector to a will on the theory of undue influence may challenge its admission.

One is by proving the elements that this court has said show undue influence.   Those are:  (1) susceptibility to undue influence, (2) opportunity to influence, (3) disposition to influence, and (4) coveted result․

The second method of challenge is to prove the existence of (1) a confidential relationship between the testator and the favored beneficiary and (2) suspicious circumstances surrounding the making of the will.

 * * *

1. Four Elements Test.

A. Susceptibility To Undue Influence.

 * * *

B. Opportunity To Influence.

 * * *

C. Disposition To Influence.

Disposition to unduly influence means more than a desire to obtain a share of the estate.   It implies a willingness to do something wrong or unfair․

 * * *

D. Coveted Result.

This element goes to the naturalness or expectedness of the bequest․

In re Estate of Kamesar, 81 Wis.2d 151, 158-62, 259 N.W.2d 733, 737-39 (1977) (citations omitted).

The record shows that First Church sought to prove its undue influence claim at trial by using the In re Estate of Kamesar two-alternatives approach.   One of the alternatives was the four elements-susceptibility-opportunity-disposition-result (SODR)-approach.   First Church's Instruction No. 24, which the court rejected, stated as follows:

There are two alternative methods of proving undue influence.   Under the first method, there are four essential elements which must be proved by First Church by a preponderance of the evidence.   Those elements are:

(1) That [Herbert] was vulnerable to undue influence.

(2) That [Soth] had the opportunity to apply such influence.

(3) That [Soth] was inclined to apply his influence for his own purposes.

(4) That the December 20, 1989 Will shows the effect of such influence.

Where three of the elements have been established, only slight evidence is necessary to establish the fourth.

First Church argued in support of First Church's Instruction No. 24 as follows:

[No.] 24, your Honor, set[s] forth the legal standards commonly applied by the courts for determining whether or not the testator had or whether or not the testator was operating under undue influence at the time of the signing, in a susceptible position of Proponent and a will which shows the result of undue influence.

And I think giving this instruction to the jury would enable the jury to put the evidence which it has heard into legally appropriate context.

Similarly, Soth offered, and the trial court refused, Soth's Instruction No. 15 as follows:

The elements which must be proven in order to reject a will on the grounds of undue influence are that (1) the testatrix, [Herbert,] was subject to undue influence, (2) there was an opportunity to exercise undue influence, (3) there was a disposition to exercise undue influence, and the result was clearly the effect of undue influence.

Notwithstanding the fact that the trial court's rejection of First Church's Instruction No. 24 and Soth's Instruction No. 15 occurred prior to closing argument as required by HRCP Rule 51(c), and notwithstanding the court's approval of Court's Instruction No. 19 (modified) on undue influence, First Church's counsel, in his closing argument, ignored Court's Instruction No. 19 (modified) on undue influence, and, without objection by Soth, told the jury in relevant part, the following:

Then let's talk about undue influence.   What are the elements of undue influence?   Four things, four things you generally look for in undue influence.   Four key elements.   And actually they can be reduced to four words.

Susceptible. Was [Herbert] susceptible to undue influence?   Number 2, opportunity.   Did Soth have the opportunity to exert undue influence?   Number 3, effect.   Does the which [sic] will show the effect of undue influence?   And number 4, disposition.   Did Soth have the disposition to exert undue influence?

 * * *

Did [Soth] have the disposition to apply undue influence, i.e. is his character such that he would be inclined to take advantage of the situation?   You've learned a lot about [Herbert].   You've also learned a lot about [Soth] as this trial has gone on.

In other words, without objection by Soth, First Church's counsel told the jury that substantial evidence of SODR is substantial evidence of undue influence.

4.

Although the SODR approach purports to state the elements of undue influence, the following three of the four elements of the SODR approach use the phrase “undue influence” in their descriptions:  susceptibility to undue influence, opportunity to unduly influence, and disposition to unduly influence.   Consequently, the SODR approach is not helpful absent a definition of undue influence.

In Hawai‘i, undue influence is defined as situations where “the influence exercised amounted to fraud or coercion destroying free agency, or the substitution of another's will for that of the testator so that the product is not that of the testator.”  Estate of Heeb, 26 Haw. 538, 540 (1922).   In other words, undue influence is “fraud or coercion destroying free agency” and/or it is “the substitution of another's will for that of the testator [.]”  Therefore, in Hawai‘i, substantial evidence of SODR is substantial evidence of undue influence only when the influence applied:  (1) was fraud or coercion that destroyed the testator's free agency;  and/or (2) resulted in the substitution of another's will for that of the testator.

Many other states do not use the Heeb definitions adopted by the Hawai‘i Supreme Court.   For example, the following approach used in New Mexico is not consistent with the Heeb definitions:

Undue influence has not been specifically defined in New Mexico.   Our Supreme Court wrote in 1949:

We make no attempt to define “undue influence”.   Neither is it susceptible of any fixed formula.   Whether undue influence is present is always a question to be determined from the circumstances of the particular case, and any attempt to define it may well suggest a clear path of evasion.   But, undue influence in the sense as used means influence, improperly exerted, which acts to the injury of the person swayed by it or to the injury of those persons whom she would have benefitted.   It is immaterial whether such influence is exercised directly or indirectly.

Generally, undue influence is not proven directly, but is inferred from the circumstances.

Matter of Ferrill, 97 N.M. 383, 387, 640 P.2d 489, 493 (Ct.App.1981), cert. quashed, 98 N.M. 51, 644 P.2d 1040 (1982) (citations omitted).   New Mexico also does not define “improperly exerted.”

Likewise, the following approach used in South Dakota is not consistent with the Heeb definition:

The South Dakota Supreme Court in In re Estate of Anders [, 88 S.D. 631, 226 N.W.2d 170 (1975),] set forth the essential elements of undue influence.   The elements of undue influence are (1) a decedent's susceptibility to undue influence, (2) opportunity by the alleged wrongdoer to exert such influence and effect a wrongful purpose, (3) a disposition to do so for an improper purpose, and (4) a result clearly showing the effect of such influence․

Note, In re Estate of Till:  Litigating Undue Influence in South Dakota, 36 S.D.L.Rev. 211, 217-18 (1990/91).   This SODR approach in South Dakota does not define “undue influence,” “wrongful purpose,” or “improper purpose.”

In our view, until such nebulous phrases such as “undue influence,” “wrongful purpose,” “improper purpose,” “improperly exerted,” and “the naturalness or expectedness of the bequest” are adequately defined and considered, substantial evidence of SODR is not substantial evidence of undue influence.   In Hawai‘i, substantial evidence of SODR is substantial evidence of undue influence only when the Heeb definitions of undue influence are used.   Any other conclusion would allow juries and judges excessive discretion to apply their personal, subjective beliefs of what constitutes a wrongful or improper purpose, and thereby violate a testator's right to make his or her own decisions as to the disposition of his or her own property.   For example, with respect to the “result” or “R” element of the SODR approach, we agree with the view that

unnaturalness or unjustness of the disposition “does not of itself support an inference of undue influence.”   To hold otherwise would violate the American principle that a person of sound mind has the right to dispose of his [or her] property as he [or she] wishes.

Rein-Francovich, An Ounce of Prevention:  Grounds For Upsetting Wills and Will Substitutes, 20 Gonz.L.Rev. 1, 38 (1984/85) (footnotes omitted).

5.

We have noted in subsection 1 above that HRE Rule 404(a)'s prohibition of character evidence does not apply in the situation where the character of a person is itself an element of a claim or defense.   This does not mean, however, that when one trait of a person's character is an element, evidence of all traits of that person's character is admissible.   The only admissible evidence is evidence of the trait of that person's character that is an element of the claim or defense.

First Church contends that Soth's alleged cunning, calculating, secretive, and untrustworthy character is relevant to the “disposition” or “D” element of the SODR approach.   We agree.

Evidence which tends to prove or disprove the subordination of the will of testator to others must, except in extreme cases, take a very wide range.   Evidence which shows an opportunity and disposition to exert undue influence, the degree of susceptibility of testator to undue influence, and a result which indicates that undue influence has been exerted, are all admissible.

3 Bowe-Parker:  Page on Wills § 29.78 (1961) (footnotes omitted).

The relevant “disposition” element is Soth's desire to obtain all or a part of Herbert's estate and his willingness to satisfy that desire by exerting influence amounting to fraud or coercion destroying Herbert's free agency, and/or by substituting Soth's will for that of Herbert's so that the product is not Herbert's product.   Evidence of Soth's alleged cunning, calculating, secretive, and untrustworthy character is relevant to that disposition element.

6.

We have also noted above that HRE Rule 608 permits the credibility of a witness to be attacked by opinion evidence of the witness' character for untruthfulness.   In recognition of that fact, the following jury instruction was given by agreement:

You as jurors are the sole judges of the credibility of all witnesses and the weight their testimony deserves.   It is your exclusive right to determine whether and to what extent a witness should be believed and to give weight to his or her testimony accordingly.

In evaluating a witness you should consider the appearance and demeanor of a witness on the witness stand;  his or her manner of testifying;  his or her degree of intelligence;  his or her apparent candor or frankness or lack thereof;  his or her interest, if any, in the result of this case;

Any relation he or she may bear to either side of the case;  his or her temper, feeling or bias, if any has been shown;  his or her character as shown by the evidence;  his or her means and opportunity of acquiring information;  the probability or improbability of his or her testimony;

The extent to which, if at all, he or she is either supported or contradicted by other evidence;  the extent to which, if at all, he or she has made contradictory statements whether in trial or at other times, and all other circumstances surrounding the witness and bearing upon his or her credibility.

Soth was a witness.   Parker opined that “[Soth] is cunning;  he is calculating;  he is secretive;  I don't trust him.”  “Cunning” means “skill in deception.”   The American Heritage Dictionary of the English Language 322 (1969).  “Calculating” means “coldly scheming or conniving.”  Id. at 189.   A synonym of “secret” is “underhand,” which “describes actions or means involving unfairness, deceit, or fraud as well as concealment.”  Id. at 1172.   In other words, Parker opined that Soth had a character for dishonesty or untruthfulness.   Thus, Parker's opinion testimony was an attack of Soth's credibility that was permitted by HRE Rule 608(a)(1), and the jury instruction quoted above.⁹

In his Motion for Reconsideration, Soth contends that “cunning” “calculating” and “secretive” are not “untruthful.”   We disagree.   One of the definitions of “cunning” is “[s]kill in deception.”  Id. Synonyms for “truth” are “veracity, verity, verisimilitude, candor, frankness.”  Id.  Soth cites the relevant definitions stated in Webster's Third New International Dictionary (1981).   One of Webster's definitions of “cunning” is “marked by wiles, craftiness, artfulness, or trickery in attaining ends[.]”  Id. at 554.   Webster defines “trickery” as “deception by ․ stratagem[.]”  Id. at 2442.

7.

If Parker's lay opinion about Soth's character was inadmissible, HRE Rule 103 would be relevant.   It states in relevant part as follows:

Rulings on evidence. (a) Effect of erroneous ruling.   Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]

Parker's admitted dislike of Soth and Theaker's testimony that Soth's character was “impeccable” and that she would “never” consider him to be deceitful or dishonest are bases for a conclusion that Parker's lay opinion about Soth's character did not affect Soth's substantial right.   Thus, if it was error to admit Parker's testimony, the error was harmless.

C.

Evidence of Soth's Actions After Herbert's Death

Soth challenges the admission of the following evidence of actions taken by Soth after Herbert's death:  (1) the INS proceeding showing Soth to be deportable, (2) Soth's representations in his petition for probate and application for appointment as special administrator that he was a resident of Hawai‘i, (3) judicial notice that during the probate hearing at which Soth was appointed Special Administrator, the judge was not informed that Soth was under an INS order to leave the United States, (4) communications between Soth and Whittier College School of Law (WCSL) both prior to Herbert's death and on July 5, 1990, indicating Soth's intent to enter WCSL commencing September 1990 and WCSL's requirement that Soth make a second deposit of $100 and provide an affidavit of support in order to be admitted as a foreign student, and (5) Soth's residence at Herbert's house commencing in 1991 without paying rent to Herbert's estate.   We conclude that Soth's challenges are without merit.

(1), (2), and (3)

Soth challenges the evidence of the INS proceeding showing Soth to be deportable, the evidence of Soth's representations in his petition for probate and application for appointment as special administrator that he was a resident of Hawai‘i, and the court's taking judicial notice of the fact that during the probate hearing at which Soth was appointed Special Administrator, the judge was not informed that Soth was under an INS order to leave the United States.

Pre-trial, the circuit court responded to Soth's motion in limine in relevant part as follows:

[A]nyone will be permitted to adduce evidence of the proponent's citizenship status within the United States.   However, the proponent is precluded from adducing evidence that the proponent misrepresented his residency status to the probate court.

Pre-trial, the circuit court reconsidered and changed its ruling in relevant part as follows:

THE COURT:  I will reconsider the Court's ruling and permit the contestants to use-both for impeachment purposes and for substantive evidence purposes-what purports to be an affidavit of [Soth] in an application for appointment of special administrator filed on or about September 12, 1990;  and also the Petition for Probate of Will and Appointment of Personal Representative filed on or about July 5th, 1990, under the Cozine [v. Hawaiian Catamaran, Ltd., 49 Haw. 77, 97-105, 412 P.2d 669, 683-87 (1966) ] decision.

I think what is significant, in all deference to [Soth's Counsel's] statements, is the phrase which one may characterize as an attestation.   That phrase states petitioner understands that this document is deemed to include an oath, affirmation or a statement to the effect that his representations are true as far as petitioner knows or is informed, and that penalties for perjury may follow deliberate falsification.   If there is going to be any explanation, the explanation should come from Mr. Soth. But it's a matter which the jury may consider-should consider for both impeachment purposes, as well as substantive evidence.

Upon direct examination by counsel for First Church, Soth testified in relevant part as follows:

Q. Did anybody tell Judge Chun that you had to be out of the country by December 5th?

A. Not to my knowledge.

At a bench conference during Soth's testimony, the trial judge stated in relevant part as follows:

THE COURT:  ․ Had that disclosure been made, Judge Chun may not have appointed him as special administrator.   That was within the Court's power.

 * * *

THE COURT:  All right.   This is over the objection of the Proponents․

 * * *

THE COURT:  Ladies and gentlemen of the jury, the Court has taken judicial notice of the fact that Judge Chun was not told at the November 16th, 1990 hearing, that Mr. Soth was under an order from the Immigration and Naturalization Service to depart the country by December 5th, 1990.

We conclude that this evidence was admissible because it was relevant to the issues of Soth's disposition to apply undue influence and Soth's credibility as a witness.

Soth contends that evidence of events which occur after a testator's death is ordinarily inadmissible on questions of testamentary capacity or undue influence.   With respect to the “disposition” or “D” element of the SODR approach, we disagree.   We conclude that any evidence relevant to the question of Soth's desire to obtain all or a part of Herbert's estate, and his willingness to satisfy that desire by exerting influence amounting to fraud or coercion destroying Herbert's free agency, and/or by substituting Soth's will for that of Herbert's so that the product is not Herbert's product, is admissible.

With respect to the issue of Soth's disposition, evidence of relevant events that occurred after the execution of the challenged will is admissible.   Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948);  Neill v. Brackett, 241 Mass. 534, 135 N.E. 690 (1922).   In that regard, the testator's death is of no material consequence.

We recognize that events occurring too long after the execution of the challenged will are too remote to be relevant.   In this case, however, Herbert executed the 1989 POA on December 18, 1989, and executed the 1989 Will on December 20, 1989 when she was at least 84 years of age, and she died on July 4, 1990.   Clearly, the date of Herbert's death is not the date subsequent to the execution of the challenged will beyond which events ceased to be relevant to the issue of Soth's disposition.

(4)

Soth challenges the evidence of communications between Soth and WCSL both prior to Herbert's death and on July 5, 1990, indicating Soth's intent to enter WCSL commencing September 1990, and WCSL's requirement that Soth make an additional deposit and provide an affidavit of support in order to be admitted as a foreign student.

Pre-trial, in response to Soth's motion in limine, the circuit court ruled in relevant part as follows:

THE COURT:  ․ The opponent is limited to adducing evidence of the proponent's conduct with respect to college or law school applications which occurred prior to the decedent's's [sic] death [on July 4, 1990], but not subsequent.

During the trial, the following exhibits were admitted into evidence:

Exhibit 27 Soth's February 17, 1990 application for admission to WCSL.

Exhibit 28 WCSL's April 2, 1990 letter of acceptance requiring a non-refundable tuition deposit of $150 no later than April 30, 1990 and of $100 no later than July 2, 1990 and the payment of tuition in full no later than August 18, 1990.

Exhibit 29 Soth's April 27, 1990 letter sending the $150 deposit.

Exhibit 30 WCSL's April 30, 1990 letter reminding Soth of its requirements.

Exhibit 31 WCSL's June 4, 1990 letter advising Soth that because he was a foreign student, it must receive an affidavit of support for the first year of law school.

Exhibit 32 WCSL's June 4, 1990 letter reminding Soth of the $100 due no later than July 2, 1990 and his duty to supply transcripts.

Exhibit 33 Soth's July 5, 1990 letter to WCSL stating that “[f]urther to our telephone conversation today, I am ‘Federal Expressing’ my second tuition payment.   Enclosed find my check for $100.”

Exhibit 34 Soth's August 9, 1990 letter to WCSL stating:

“I regret to inform you that I will not be able to begin my study of Law this August.   I have recently been informed that I will be assigned as personal representative of a large estate, that is to be probated here in [Hawai‘i] beginning August 31st.

․ [I]t is my understanding that Whittier College may allow me to defer my admission by one semester.

Ms. Reid, I am eager to study law and hope that you will consider deferring my admission until January 1991.”

Exhibit 35 WCSL's August 13, 1990 letter granting Soth's request for deferral.

Clearly, the admission of Exhibits 33, 34, and 35 into evidence contradicted the circuit court's pre-trial order in limine.   However, Exhibit 33 was the first to be admitted, as follows:

[COUNSEL FOR FIRST CHURCH]:  I move Plaintiff's Exhibit 33 into evidence.

[COUNSEL FOR SOTH]:  No objection.

Similarly, Counsel for Soth expressly did not object to Exhibit 32, Exhibit 29, Exhibit 30, Exhibit 31, Exhibit 27, Exhibit 28 and Exhibit 34.   Exhibit 35 was the last to be admitted as follows:

[COUNSEL FOR SOTH]:  No objection, subject though to the objections that we raised at the outset regarding-relating to relevancy.

Soth's failure to object to the introduction of Exhibits 33 and 34 precludes him from raising on appeal the issue of their introduction into evidence.   HRE Rule 103(a)(1);  MPM Hawaiian, Inc. v. Amigos, Inc., 63 Haw. 485, 487, 630 P.2d 1075, 1077 (1981).   He can raise the issue of Exhibit 35's introduction into evidence.

We conclude that Exhibit 35 is admissible because it is relevant to the issue of Soth's disposition to exert undue influence.   Moreover, in light of the other evidence, if its introduction was erroneous, the error was harmless.

(5)

Soth challenges the evidence of Soth's residence at Herbert's house commencing in 1991 without paying rent to Herbert's estate.   On April 8, 1992 Soth testified in relevant part as follows:

[COUNSEL FOR FIRST CHURCH]:

Q. Where are you living?

A. 223 Kaalawai [Ka‘alwai] Place.

Q. Is that Carmen Herbert's home?

A. Yes, it is.

 * * *

Q. How long have you been occupying that house without paying rent?

A. Approximately, a year, I would say.   I moved in, in the Spring of 1991, I believe, a year ago, I would say.

Since Soth's pre-trial motion to exclude irrelevant matters did not result in a pre-trial unequivocal ruling on this specific evidence, he was not excused from objecting to it at the trial.  Craft v. Peebles, 78 Hawai‘i 287, 294-95, 893 P.2d 138, 145-46 (1995).   However, when these questions were asked and answered at the trial, he did not object to them.

We recognize that HRE Rule 103(d) (1996) states that “[n]othing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.”   According to the Hawai‘i Supreme Court, however,

[i]n civil cases, the plain error rule is only invoked when “justice so requires.”   We have taken three factors into account in deciding whether our discretionary power to notice plain error ought to be exercised in civil cases:  (1) whether consideration of the issue not raised at trial requires additional facts;  (2) whether its resolution will affect the integrity of the trial court's findings of fact;  and (3) whether the issue is of great public import.

State v. Fox, 70 Haw. 46, 56 n. 2, 760 P.2d 670, 676 n. 2 (1988) (citations omitted).

In Soth's case, the evidence in question was relevant to the issue of Soth's disposition to exert undue influence.   Assuming it was not relevant, justice did not require the invocation of the plain error rule.

III.

Jury InstructionsA.

Howell testified in relevant part as follows:

A. ․ [Soth and I] had a conversation in my office and [Soth] briefly outlined the situation, which was that a wealthy elderly lady wanted to leave him all of her estate by a will and would I draw the will.   I said yes, I would, but I would want to interview the lady first, because it is not my policy to draw wills and give them to a beneficiary, and have them take the will out and have the testator or testatrix sign the will out of my office.

Soth testified in relevant part as follows:

BY [COUNSEL FOR SOTH]:

 * * *

Q. Coming back to the spring of 1989, shortly after [Herbert] was home she called you in and told you or showed you her-the '88 Will?

A. Yes.

Q. What was your reaction when she told you that she wanted to leave her properties to you?

A. Well, it was, as I said earlier, it was just a very overwhelming kind of thing.

Q. Did you-I mean, did you say anything back to her?

A. Well, I did.   I went over certain points in the Will such as you know, the different bequests and the church and things like that and said, you know, I always heard it rumored, you know, you're going to leave something to the church or something to that effect.   And she responded oh, no, that's-that's not what I want.   So, going over those different things she would either express surprise or suggest that that was not what she wanted and she in fact wanted to leave everything to me.

 * * *

Q. ․ Was there more to that conversation at that time?

A. Well, I suggested at that time that she contact an attorney and-

Q. For what reason?

A. To draft up a new Will or to make the changes that she wanted.

Q. What was [Herbert's] reaction?

A. She said yes and Richard's name came up and-

Q. How did Richard's name come up?   This is Richard Mirikitani we're talking about?

 * * *

Q. Okay.

Describe the-the dinner at Waialae [Wai‘alae].   First of all, was it just the three of you?

A. It was [Herbert], Richard and I, yes․

Q. How did the topic of the Will come up if it did?

A. Richard broached the subject and got into discussions about all these various changes, the subject of documents having been executed September of '88 and probably the subject of the Will came up and the fact that [Herbert] was displeased about what that document did with her-her estate.

 * * *

Q. Who did the talking regarding the Will?

A. I think Richard-I might have made some comments regarding a general scheme of things as I understood ‘em from things that [Herbert] had told me and shown me, I didn't get into specifics.   Richard made the introduction of certain subjects with [Herbert] and it was left in a sense that Richard would follow up on these things and I got the feeling that this was something that was going to take on between the two of ‘em and I didn't feel comfortable about discussing specifics for my side.

Q. What was-what was said that left you with the impression that things were going to be carried forward from there?

A. Richard-Richard stated that, he says [Herbert], it's obvious to me that you're quite lucid and you're in good hands, you're now an official client of [my law firm] and I will look-look into things and he gave the impression he-he wasn't worried about taking on these challenges.

Q. How did the-how did this topic of being lucid come up?

A. I think [Herbert] made some statement to Richard, something to the effect that people probably think I am batty or crazy and can't run my own affairs or I can't understand why I-I can't do things the way I did before.   Those are generally the type of comments that [Herbert] made and it was certainly conveyed to Richard that she wanted to get things back the way she wanted them, not the way other people wanted them.

Q. Was there any time table that was discussed as to when these things would be done?

A. Not in-specific terms, but I was left with the impression that Richard would take care of ‘em, and that meant getting to them as soon as possible.

 * * *

Q. In December of 1989 Carmen granted you a Power of Attorney, correct?

A. That is correct, yes.

 * * *

Q. How is it that you came to compose this Power of Attorney?

A. She wanted me to have the same Power of Attorney that the Adams had held and asked me to follow the form which I did and then she executed it.

 * * *

Q. ․

Could you describe for the ladies and gentlemen of the jury how it was that after having received the Power of Attorney on the 18th, that [Herbert] provided to you the draft of the 1988 Will to revise?

Q. Well, there was one thing in between it.   The subject of the Will again was raised and the subject of Mr. Mirikitani and-and him not following through and at that time I suggested, well, maybe it's time to get another lawyer.

Q. Was this when Mr. Howell came into the picture?

A. That's correct, yes.

Q. Let's talk about Mr. Howell for a moment if we can.

 * * *

Q. What did you take with you?

A. I took the Power of Attorney that had been given to me by [Herbert] the day or two before.

Q. Now, ․ on the copy of the Power of Attorney that you took with you, did you do anything to it?

A. I-took [Herbert's] name off it with liquid paper just for the initial consultation with Mr. Howell.

Q. Why did you do that?

A. [Herbert] was-wanted me to get an idea of the lawyer before discussing matters with him specifically because she had some concern that he may know [Sterling and Floye].

 * * *

Q. All right.   Why are you asking Mr. Howell as to what he thinks of the Power of Attorney if it's already been replicated?

A. Because I didn't really know what it was and I wanted to make sure it was proper and everything was okay.  [Herbert] was the one that wanted me to have it but I wanted to know what my responsibilities were in terms of the Power of Attorney and what it meant.

Q. What do you recall of Mr. Howell's comments to you insofar as the Power of Attorney was concerned when you met with him?

A. ․ He also asked me why I had not liquid papered out or why I had liquid papered out [Herbert's] name throughout the document and left it on the notary page.

 * * *

Q. What happened when he saw [Herbert's] name on the last page?

A. He said whose [sic] [Herbert.]   I said well, this is the lady that I am speaking to you of.   I said Mr. Howell, it's a small town and Mrs. Herbert has some concerns that you may know these people in question and-and wanted me to check you out first basically.

Q. Did he say anything else?

A. Yeah, at that time he said, you know, nothing-there's nothing to worry about because any conversations that you and I have are protected by attorney client privilege and Mrs. Herbert is also protected by that privilege.   He says I wouldn't go running out and-and discussing her matters with people, you know, that may be common friends or the like.

 * * *

Q. Tell us of recollections, [Soth], as to the conversation with Mr. Howell as it related to consulting with [Herbert] to draft a new Will?

A. Well, we discussed what [Herbert] wanted first of all, and I explained to ‘em that she wanted to leave everything to me․

 * * *

Q. After discussing the visit with Mr. Howell with [Herbert], was there a discussion to setting an appointment to see him or anyone else in January?

A. No, at that point she referred to the Will and just said you know, you can do it, you can-you know what I want, you can do it, referring to the Will.

Q. What was your response to that?

A. I couldn't come up with a good reason why I couldn't do it.10

Based on the evidence, Soth contended that Herbert was Howell's client and Soth was Herbert's agent.

Howell testified that after Herbert's death he “talked with [Counsel for First Church] once or twice, and he kind of briefed me on the facts.”   He further testified that he “spoke with Mrs. Adams once in church.   She told me about this case, and I think that was when I began to put two and two together, that the young man was Mr. Soth that had consulted me.”

Loden testified that after Herbert died and the 1989 Will was about to be probated, “Mr. Howell had told me that [Soth] had come to him and asked him to write a will in blank and give it to him so he could have it signed by [Herbert].”

Immediately after Soth's closing argument, First Church's counsel voiced the following concern:

[COUNSEL FOR FIRST CHURCH]:  ․ I am concerned.   The second display which they showed to the jury and which was-has some language on it which was not quoted out loud so it does not appear on the Court record,․

And Mr. Howell is stated on that exhibit as having breached his confidential communication by disclosing those communications to Mrs. Adams, [Counsel for First Church] and Mr. Loden.

 * * *

THE COURT:  ․

And to what are you referring?

[COUNSEL FOR FIRST CHURCH]:  Specifically what I'm referring to, your Honor, is ․ Mr. Howell, “Breached Mr. Soth's confidential communications by disclosing them to Mrs. Adams, Mr. Loden and [Counsel for First Church].”

 * * *

[COUNSEL FOR SOTH]:  ․

Mr. Howell's deposition, he stated that I-very clearly he stated that I revealed all this information to Mrs. Adams, Mr. Loden, [Counsel for First Church].   This is all part of the deposition record in this case.   We did not emphasize this in oral argument.   I don't know if the jury saw it.

THE COURT:  What does it breach?   I don't recall any testimony about a breach.

[COUNSEL FOR SOTH]:  Mr. Howell did-Mr.   Howell was questioned about his-up on the stand about revealing his confidence to Mrs. Adams, Mr. Loden and [Counsel for First Church].   He did say that in evidence.

[COUNSEL FOR FIRST CHURCH]:  But the testimony was, your Honor, that that is proper, that the attorney-client privilege does not apply when you have Contestants under the same deceased person's will.

[COUNSEL FOR SOTH]:  That merely says that the attorney-client privilege, according to the rules, merely says I can't have any evidence but it doesn't allow the lawyer to go in and breach his confidence willy-nilly to strangers or anyone else.   I think it's a very serious point, your Honor.

THE COURT:  So the Contestant is merely requesting an appropriate instruction to the jury?

[COUNSEL FOR FIRST CHURCH]:  Yes, your Honor.

 * * *

THE COURT:  ․

Ladies and gentlemen of the jury, as I previously indicated to you in one of the instructions, what a lawyer says in court is not evidence.   Lawyers are entitled by law to make statements and arguments to you.

And another instruction that I'm giving you is that you must disregard any statement or argument of a lawyer which has no basis or support in the evidence.   You are not bound by the lawyer's recollections or interpretations of the evidence.

It's been called to my attention that the Proponent, [Counsel for Soth], in his argument to you used a chart which is entitled The Lawyer Connections.   I don't know whether or not you focused on the chart or focused on its contents;  however, there are certain matters on those-on the chart which you must disregard.   The reason I am instructing you to disregard those matters is that those matters are not supported by the evidence.

 * * *

The other matter that the chart indicates is that Mr. Peter Howell breached [Soth's] confidential communications by disclosing them to Mrs. Adams, Mr. Loden, and [Counsel for First Church].   You must disregard that statement.   That statement is not supported by the evidence.

Now, by a show of hands, is there anyone on the panel who cannot comply with the Court's instructions to disregard those statements?   The record will indicate no response.

Soth appeals the court's instruction telling the jury that the allegation that Howell breached his duty to keep Soth's communications confidential by disclosing them to Mrs. Adams, Loden, and Counsel for First Church was not supported by the evidence.

The record does not reveal the relevance of Howell's alleged breach of his duty of confidentiality to the issues in the case.   Moreover, assuming Howell breached his duty of confidentiality, the breach was rendered harmless when he testified at the trial.   In any event, based on the following quote, we agree with the instruction.

There are, however, certain exceptions to the general rule that communications between attorneys and clients are privileged.   The recognition of a privilege does not mean that there are no exceptions to it.   One such exception adopted by many of the courts is that such communications lose their confidential character after the death of the client and that such communications can be shown in litigation between parties, all of whom claim under the client.   Thus, where the controversy is to determine who shall acquire the property of the deceased, and where all parties claim under him,

․ neither can set up a claim of privilege against the other with respect to the communications of deceased with his attorney.   97 C.J.S. Witnesses § 292 at p. 823.

The courts which adopt this view do so on the theory that, in a controversy not adverse to the estate, between heirs at law, next of kin, devisees, legatees, and personal representatives, the claim that the communication was privileged cannot be heard.   In such case, the interest of the deceased as well as that of the estate is that the truth be ascertained.  Winters v. Winters, 102 Iowa 53, 71 N.W. 184.

 * * *

Thus these courts hold that the confidential nature of communications between attorney and client is not recognized, and this privilege no longer is applicable, in litigation which occurs after the client's death, which litigation is between parties, all of whom claim under the client.   Where the litigation is to determine who shall take the property of the deceased and all parties claim under the client, neither party to the litigation can claim that such communications are privileged.   Between persons claiming under the deceased client and others who are not heirs, next of kin, legatees, or devisees of the testator, the privilege still would survive.

The reason for this exception to the general rule of holding communications between attorney and client as privileged, is sound.   In controversies between heirs at law, devisees, legatees, or next of kin of the client, such communications should not be held as privileged because, in such case, the proceedings are not adverse to the estate.   The interest of the estate as well as the interest of the deceased client demand that the truth be determined.

In re Graf's Estate, 119 N.W.2d 478, 481 (N.D.1963).

B.

Soth contends that the trial court reversibly erred when it refused to give seven of his requested jury instructions and when its instructions permitted the jury to find mistake.   We affirm the trial court's instructions.

It is the trial court's duty to sufficiently instruct the jury on the proper rule of law to be applied in the case and to avoid giving cumulative instructions.  Tittle v. Hurlbutt, 53 Haw. 526, 530, 497 P.2d 1354, 1357 (1972).   That is what the trial court did in this case.

The trial court does not err when it refuses to give a requested instruction that correctly states the law on a relevant issue when that law is adequately covered in the instructions given.   See Radford v. Morris, 52 Haw. 180, 187, 472 P.2d 500, 504, reh'g denied, 52 Haw. 225, 472 P.2d 500 (1970).   The jury instructions given must be affirmed if, as a whole, they are correct statements of the law and are not prejudicially insufficient, erroneous, inconsistent, or misleading.  Johnson v. Robert's Hawaii Tour, Inc., 4 Haw.App. 175, 184, 664 P.2d 262, 268 (1983).   In this case, the jury instructions satisfied the applicable requirements.

One of Soth's instructions the trial court refused to give is the following:

PETITIONER'S INSTRUCTION NO. 1

The presumption of law is in favor of testamentary capacity, and one who insists on the contrary has the burden of proving by a preponderance of the evidence that the testatrix, [Herbert], was incompetent on December 20, 1989, and that her will of that date was the product of undue influence.

Instead, the trial court instructed the jury that First Church objected to Soth's petition on three grounds, identified the three grounds, and then stated that the burden is upon First Church “to prove these allegations by a preponderance of the evidence.”   The trial court then instructed the jury as to the elements of each of the three grounds.   With respect to the elements of each ground, the trial court instructed the jury that First Church had the burden to prove all of the elements by a preponderance of the evidence.

Soth contends that the trial court reversibly erred when it refused to instruct the jury that “[t]he presumption of law is in favor of testamentary capacity[.]”  We disagree.   The case Soth cited to the trial court as authority for the proposed instruction is In re Estate of Coleman, 1 Haw.App. 136, 615 P.2d 760 (1980).   However, the following quote from In re Estate of Coleman is precise precedent validating the trial court's decision not to instruct the jury that the presumption of the law is in favor of testamentary capacity.

The effect of the [Estate of Lopez, 25 Haw. 197 (1919) ] presumption of testamentary capacity is to place the burden of proving lack of capacity on contestants.   The burden was correctly placed on the contestants in this case․  A trial judge does not exceed the limits of his discretion by refusing a requested instruction which is substantially covered by other instructions given.  Kometani v. Heath, 50 Haw. 89, 431 P.2d 931 (1967).   We hold that the trial court did not abuse its discretion by refusing to separately instruct the jury on the presumption of competence.

In re Coleman, at 139, 615 P.2d at 762.

IV.

The court granted Soth's pretrial motion to preclude First Church from stating to the jury that Soth engaged in the unauthorized practice of law when he typed the 1989 Will.   At the trial, during cross-examination by Soth, Loden testified in relevant part as follows:

Q. Now, the will that you drafted in 1988, you don't have any proprietary interest over the specific form of this will, do you?

A. Could you clarify your question?   I don't have any proprietary-I drafted that document.   It's different from any other documents in town.

Q. Have you copyrighted it?

A. No.

Q. There is nothing wrong with someone else copying it?

A. Legally, there is nothing wrong.   Morally, there is.

Q. Legally there is nothing wrong?

A. It's not copyrighted, therefore anyone could copy it.

Q. Including a non-attorney?

A. No, I think a non-attorney would be practicing law, and I think that is a variation of the statute in [Hawai‘i].

Q. Can we approach?

[COUNSEL FOR SOTH]:  I am going to ask that the last answer be stricken as unresponsive.

THE COURT:  I will see counsel at the bench.

(Whereupon the following conference was had at the bench.)

THE COURT:  Is there any objection to the motion?

[COUNSEL FOR FIRST CHURCH]:  I think the response-the answer was responsive to the question.

[COUNSEL FOR SOTH]:  Half of it was.   I asked if there was anything wrong with a non-attorney copying that will, and he said “legally” no.   And then he said, “I think it would be an unauthorized practice of law.”   That is the statement that I object to as counsel for the church, in their case, at least in part, he had to be familiar with the rulings of the court up to this point.   I am sure he is not ignorant of what's going on.

[Counsel for First Church] should have instructed him.

[COUNSEL FOR FIRST CHURCH]:  I don't not [sic] how else he could respond to the question, do you think there is anything wrong.

THE COURT:  I am going to deny the motion.   It was an open ended question and the witness responded, and the response supports the question asked.

We conclude that the circuit court's decision not to strike the challenged testimony was not an abuse of its discretion.

CONCLUSION

Accordingly, we affirm the circuit court's May 13, 1992 Judgment denying petitioner Hanno Soth's July 5, 1990 Petition for Probate of Will and Appointment of Personal Representative.

I respectfully dissent.

First, I disagree with the majority's holding that an instruction on the presumption favoring testamentary capacity was not necessary.

The Hawai‘i Supreme Court has stated that “[t]he first, and we might say the controlling principle ․ is that the presumption of law is in favor of testamentary capacity and that he who insists on the contrary has the burden of proving it[.]”  Estate of Lopez, 25 Haw. 197, 200 (1919).   Admittedly, it has been held that “[a] trial judge does not exceed the limits of his discretion by refusing a requested instruction which is substantially covered by other instructions given.”  In re Estate of Coleman, 1 Haw.App. 136, 139, 615 P.2d 760, 762 (1980) (citations omitted).

However, the Hawai‘i Supreme Court has said that “[t]he boundaries of the trial judge's discretion [in giving instructions] ․ are defined by the obligation to give sufficient instructions and the opposing imperative against cumulative instructions.”  Tittle v. Hurlbutt, 53 Haw. 526, 530, 497 P.2d 1354, 1357 (1972).   It is more important, however, in choosing between the two, that “adequate and thorough instruction[s] ․ be given.”  Id. at 530-31, 497 P.2d at 1357.

The instruction would have had a salutary effect.   Since the testatrix was obviously not available to testify, the fact that she duly executed the will was at least evidence relevant to ascertaining her intent.   Consequently, that fact should be given some initial weight in the jury's determination.

Second, I do not believe that holding that “[i]n Hawai‘i, substantial evidence of SODR is substantial evidence of undue influence only when” the test in Estate of Heeb, 26 Haw. 538, 540 (1922) is satisfied advances the application of the law.   If the SODR formula is not adopted, as the majority opinion states, the “disposition” or “D” element of the SODR formula is “not relevant,” and we should require a new trial.   For, despite the trial court's rejection of an SODR instruction, it permitted evidence to be received and the case to be tried and argued to the jury on the basis of the SODR formula.   As a result, evidence of the general character of the will's proponent was submitted to the jury.¹

The long recognized objection to character evidence is that it

is of slight probative value and may be very prejudicial.   It tends to distract the trier of fact from the main question of what actually happened;  ․ [i]t subtly permits the trier of fact to reward the good [person] and to punish the bad [person] because of their respective characters despite what the evidence ․ shows actually happened.2

Commentary to Hawai‘i Rules of Evidence Rule 404(a).

On the other hand, I can think of no clearer definition of “undue influence” or one more suited to practical application by a judge or by a jury then that part of the Heeb test which states that undue influence is “the substitution of another's will for that of the testator ³ so that the product is not that of the testator.”  Heeb, 26 Haw. at 540.

The “substitution of will” standard can be objectively applied and is free of the evaluative language incorporated in various definitions of undue influence.   I agree that those definitions do little to clarify the primary issue for the fact finder and simply add confusion to the process.

The “substitution of will” standard focuses not on the general motivation, propensity, or personality of the person alleged to have exerted the prohibited influence or on the perceived undesirability or desirability of the ultimate testamentary disposition, but on where the focus should be:  whether the influence exerted has, in fact, displaced the free and independent will of the testator.

Influence may be exerted to accomplish what many may believe to be praise-worthy objectives.   But, the influence in such a case is no less undue than when the results obtained are condemned by most.

An objective and practical “substitution of will” standard ⁴ frees the fact finder to concentrate on the essential question of whether the testator's independent will has been displaced.   I would therefore remand the case on the ground that the “substitution of will” standard under Heeb applies and that evidence and argument irrelevant to that standard should have been excluded by the trial court.

Third, I think evidence that the proponent of the will violated immigration and naturalization service laws, purportedly misrepresented his length of residency in Hawai‘i to the probate court,⁵ and allegedly engaged in the unauthorized practice of law ⁶ should have been excluded.   The evidence had no bearing on any material issue in the case and by its nature could only unfairly prejudice the will's proponent in the eyes of the jury.   In that connection, I believe the admission of such evidence may have affected the jury's verdict.⁷

It is established that

[a] conflict in the jury's answers to questions in a special verdict will warrant a new trial only if those answers are irreconcilably inconsistent, and the verdict will not be disturbed if the answers can be reconciled under any theory.   The theory, however, must be supported by the trial court's instructions to the jury.

Carr v. Strode, 79 Hawai‘i 475, 489, 904 P.2d 489, 503 (1995) (citations omitted).

Here, the verdicts of the jury are irreconcilably inconsistent.   The jury found that the testatrix lacked testamentary capacity, committed a mistake, and was unduly influenced.   If the testatrix lacked testamentary capacity, she would have also lacked the mental capacity to commit a testamentary mistake or to have been subjected to undue influence.   If she were unduly influenced, then it would be inconsistent to find, as the jury did, that she had committed a testamentary mistake.⁸

The verdicts cannot be reconciled under the court's instructions to the jury.   The trial court instructed the jury that the contestant had the burden to prove one of three alternative testamentary disabilities:  that the testatrix “did not have testamentary capacity ․ or ․ was under the undue influence of the proponent ․ or was mistaken as to the nature or content of the will.”   (Emphases added).   The jury, however, returned a verdict in favor of the contestant on all three grounds.   The testatrix could not have simultaneously suffered under a trio of testamentary disabilities.   Whatever its basis, the verdict cannot support the degree of confidence in the trial proceedings which would justify affirmance.

This case presents hard facts.   However, I cannot agree that the approach adopted here should apply in future cases.

Therefore, I would vacate the judgment and remand the case for a new trial.

FOOTNOTES

1.   However, Dorothy Theaker, who was called as a witness by Hanno Soth (Soth), testified on cross-examination in relevant part as follows:A.  She never wanted people to know how old [she was] but she graduated from high school the same year my brother did and he is 91 at the present time.Q. So, all of her medical records are wrong, she has her down at 84, and in point of fact?A. That is the way she wanted it.   She didn't want anybody to know.Q. She fooled a lot of people.   When was your brother born, 1901?  * * *A. 1900.Q. You're saying Carmen was the same class?A. She graduated the same year.Q. That means we've all thought that she was 84 when she died, in point of fact, she was around ninety when she died, yes?A. She had to be.   You don't graduate from high school until you're seventeen or eighteen.

2.   The 1973 Will gave $5,000 to First Church of Christ Scientist Honolulu (First Church), $5,000 to First Church of Christ Scientist Boston, and the remainder to Mrs. Thomas P. (Monette) Herbert of Los Angeles, California, the sister-in-law of the husband of decedent Carmen Corrine Herbert (Herbert), if she survived Herbert.   If Monette did not survive Herbert, Herbert gave one-half of her estate to First Church and one-half to Shriners Hospital for Crippled Children, a Colorado corporation, for the exclusive benefit of its Honolulu unit.   Monette predeceased Herbert.

3.   The differences between the 1988 Will and the 1989 Will are as follows:1988 Will1989 WillPersonalRepresentative:  J. Sterling Adams  Hanno Soth  Personal & HouseholdEffects:  First Church  Hanno Soth  Specific Bequests:  $10,000 each  Floye Adams and J. Sterling Adams  ---or$20,000  To the Survivor  Floye Adams  $10,000 each  Betty Pettus and James Pettus  Sameor$20,000  To the Survivor  Same  $10,000   Allan Lum  Same  $5,000  Hanno Soth  ---  Residue:  First Church  Hanno Soth

4.      Q. [By counsel for First Church] Did there ever come a time when [Herbert] believed that [Soth] and [his girlfriend] Michelle were engaged?A. Hm-hmm.   One time I came home and I came into the kitchen, and [Herbert] was pacing the kitchen floor back and forth.   She was agitated, she was shaking, her face was all red, she was just really excited about something, and I said what's wrong.   And she said that when she went on her walk up the hill, that the neighbor up there told her that [Soth] and Michelle had just gotten engaged, and she was really upset about that.Q. What did she say after she explained what happened?   What, if anything, else did she say?A. She said[,] “I can't believe this is true.”   She was trying to call [Soth], and I guess she kept getting his answering machine, because she kept trying to call him and she was pacing back and forth on the kitchen floor staring out the window, waiting for [Soth] to come home.   She just couldn't believe that after all she had done for [Soth], that he was going to marry Michelle.   She was just beside herself.   She had to find out that it wasn't true.Q. Okay.   Did you have any subsequent discussions with her about that?A. Yeah, she told me that [Soth] wanted to break up with Michelle, but that Michelle didn't want to break up, that Michelle was constantly after him and pursuing him, and she wouldn't hear of the break up, that she still wanted to go with him, and she was saying how sorry she felt for [Soth] because he couldn't get rid of Michelle and he didn't want her there anymore.Q. Did you happen to notice if Michelle visited [Soth] at all after this purported attempted break up of their relationship?A. Yeah, Michelle continued to visit [Soth], and I did notice that she started parking her car in a different place.   She used to park her car right in front where [Herbert] could always know when Michelle was with [Soth], and she started parking her car up the street,․  * * *Q. Could you see her car up the street from [Herbert's] house?   If you were in [Herbert's] house, could you see?A. No, no.Q. So she is now parking the car where [Herbert] in the house could not see it any longer?A. Right.

5.   Soth also challenges the circuit court's refusal to allow him to present Peter Kashiwa, Esq. (Kashiwa), his attorney during the Immigration and Naturalization Service (INS) proceedings, as a rebuttal witness to testify that (1) Soth's problem with the INS for having overstayed his six-month tourist visa was a technical, routine matter that was quickly remedied by his going to Canada and returning, and (2) he was a resident of Hawai‘i because he had been living in Hawai‘i continuously for more than two years and can continue to do so as long as he complies with his visa requirements.   Based on the fact that neither party named Kashiwa on their final witness list, we conclude that the court did not abuse its discretion.

6.   Although Hawai‘i Rules of Civil Procedure (HRCP) Rule 81(a)(1) provides that the rules do not apply to “[p]robate proceedings under chapter 560,” HRCP Rule 81(c) states that the rules apply to “any jury trial in probate proceedings under Chapter 560.”

7.   As a result of amendments in 1992 and 1993, Rule 608(b), Hawai‘i Rules of Evidence (HRE), chapter 626, Hawai‘i Revised Statutes, now states in relevant part as follows:(b) Specific instances of conduct.   Specific instances of the conduct of a witness, for the purpose of attacking the witness' credibility, if probative of untruthfulness, may be inquired into on cross-examination of the witness and, in the discretion of the court, may be proved by extrinsic evidence.   When a witness testifies to the character of another witness under subsection (a), relevant specific instances of the other witness' conduct may be inquired into on cross-examination but may not be proved by extrinsic evidence.

8.   This instruction lists the three grounds as alternatives.   But then it states that “[t]he burden is upon the contestant to prove these allegations[.]”  The Special Verdict Form given to the jury instructed the jury to “[p]lease proceed to question number 2[,]” and “[p]lease proceed to question number 3[,]” whether or not the answer to the previous question was “YES” or “NO[.]”  It further instructed the jury that “[a]fter you have answered all of the [three] questions, please have your foreperson date and sign this form and call the Bailiff.”

9.   In his Motion for Reconsideration of our initial opinion deciding this appeal, Soth contends that our reliance on HRE Rule 608 “is strange” because “[c]redibility and Rule 608 were not mentioned at any time in the discussion among the trial court and counsel.”   The dispositive question, however, is whether the applicable rules permitted the trial judge to allow the challenged testimony into evidence.   If the answer is “yes,” the fact that the trial judge relied on the wrong reason or rule is harmless error.  HRE Rule 103(a).   See Reyes v. Kuboyama, 76 Hawai‘i 137, 140, 870 P.2d 1281, 1284 (1994) (where the circuit court's decision is correct, its conclusion will not be disturbed on the ground that it gave the wrong reason for its ruling).

10.   Also on December 20, 1989, Soth prepared a letter for Herbert's signature to Richard Mirikitani stating in relevant part as follows:Dear Richard:Thank you so much for all that you have done for me.I feel that, I am once again, in control of my affairs.   I am no longer interested in setting up a trust and do not wish to trouble you any further.Please let me know what I owe you and your firm.   I am deeply grateful to you.After Herbert signed it in the wrong place, Soth printed another original, Herbert signed it, and Soth mailed it.

1.   As the majority opinion points out, character evidence may also be admissible for the purpose of impeaching the credibility of a witness.   See Hawai‘i Rules of Evidence (HRE) Rule 608.   I do not reach the question of whether impeachment was properly done but address the tenor of the evidence which seemed clearly aimed at the character of the will's proponent beyond that relating to truthfulness or untruthfulness.

2.   HRE Rule 404(a) states in relevant part:  “Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith ․”;  Lee v. Elbaum, 77 Hawai‘i 446, 458-59, 887 P.2d 656, 668-69 (App.1993) (“It is well-settled that evidence of the good or bad character of either party to a civil action is generally inadmissible.”) (quoting Feliciano v. City and County of Honolulu, 62 Haw. 88, 91, 611 P.2d 989, 991 (1980)).

3.   Testator as used herein means both “testator” and “testatrix.”

4.   “Fraud” or “coercion” are only examples of the ways in which the testator's will may be displaced and are logically subsumed under the “substitution of will” standard.   Therefore, an instruction which posits fraud and coercion as examples of the “substitution of will” standard would not violate the definition of undue influence established in Heeb. Estate of Heeb, 26 Haw. 538, 540 (1922).

5.   The trial court also refused to allow the proponent to present his attorney at the immigration proceeding, Peter Kashiwa, as a rebuttal witness to testify that the proponent's problem with the INS was a “technical, routine matter that was quickly remedied[,]” and that he was a resident of Hawai‘i because he had been living in Hawai‘i continuously for two years.   The proponent should have had the opportunity to rebut the prejudicial effect of a deportation order and to show that he was in continuous residence in Hawai‘i for two years.

6.   The trial court should have granted the proponent's motion to strike Loden's statement that a non-attorney who copied the will “would be practicing law, and I think that is a variation of the statute in [Hawai‘i].”   Instead the court denied the motion to strike because “it was an open ended question and the witness responded.”   However, the testimony violated the court's pre-trial ruling precluding the contestant “from arguing or from stating to the [jury] that the proponent engaged in unauthorized practice of law.”

7.   Although neither party addressed the inconsistency of the verdicts, plain error may be noticed in civil cases.  HRE Rule 103(d);  Lindeman v. Raynor, 43 Haw. 299, 303 (1959).

8.   I find nothing in the record to establish, as stated in the jury instructions, that the “decedent was mistaken as to the nature and content of the will[.]”

BURNS, Chief Judge.