The Trustee – A Short History

When Ben and Lena first wrote the trust in 1960, it made sense for them to appoint as Trustee their son-in-law Bob Opelle, who, along with Frances, were the only couple amongst their  children who planned to remain there with them in residence in American Samoa.  Ben’s untimely death in 1964 changed everything, and the children-  Ben, John, Margaret gradually came home.  Mike was already there in 1963, moving back and forth to Orange County throughout the 70’s.

This worked for a while, but business differences and unequal trust distributions began to cause rancour.  By 1974, Opelle was replaced by James in the 1974 Agreement Modifying Trust.  Simultaneously, Mike submitted for circulation among the family the “1974 Olo Land Planning Agreement” which document frankly contradicted most of the terms of the trust, but, worse, enshrined the belief that they could be their own Trustees- a grave mistake, in retrospect, since the court did not agree.

In the first litigations over Lena’s probate, Judge Miyamoto corrected this misimpression in his 1982 Order Granting Partial Summary Judgment.  Predictably, there is nothing to suggest anyone listened, or even read his decision, other than to conclude the trust was valid.  In writing up their 1982 Agreement, they stipulated that it was indisputable under penalty of forfeiture, that James was the Trustee.  Regrettably, they neglected to specify whether he was Trustee of the marital trust and other estate assets, which would have been correct, or whether they intended also that he was Trustee over the lands held in the trust (which was clearly impermissible under the statutes).  The High Court noted this as early as the Alai proceeding filed in 2001, when Plaintiffs had filed as “trustees,” and promptly ordered the family to appoint a legally permissible trustee.

When it came time to do business which required a trustee, Hans Langkilde was recruited by Mike and Margaret to “ink deals,” but no one else knew of his role.  He may have signed all of the 1982 transfers.  Still, no one told Frances about his availability when she wanted to sell “her” land at Olo to the Jennings family in 2004, when she was allowed to conclude there was no Trustee to act for her.  Neither was the High Court, or Frances’ lawyer Charles Alailima told of Hans’ availability.  Once again, the High Court reminded the family they needed a Trustee in 2006-2007.

The family first tried to organize a trustee appointment with a Memorandum of Understanding which they all signed, knowing only a trustee could convey legal title to the land, which some intended to do, whereupon Hans officially became trustee.  As soon as the disputed sales began, one year later, (2010-2012) Hans wisely and promptly resigned. Efforts to revise the Memorandum of Understanding to accommodate differences were made, and its legal basis annotated, anticipating a court challenge.    Its’ death as a document was made permanent when Hall was retained by Mike to represent the sales, and no agreement was possible.  Some said it “. . . gave the Trustee too much power.”  In fact, the trust itself had already given the trustee unlimited discretion to manage the properties ” . . . in any manner he deems best.”

Finally, the family appointed Utu Abe Malae, but not without an argument from Roy Hall and Mike, who claimed the Memo was an “employment contract” applicable only to Hans Langkilde.  Hall argued in court that we did not have to go to court to appoint a successor trustee, but the research into authorities said we did.  Hall wanted to participate in the preparation of a new employment contract and use of his “forms” to appoint the new Trustee. No agreement was reached on any point at all, but once in court and with no further ado, the court appointed Mr. Malae.

The lawyers were asked for transcripts of those court hearings, but have to date (2019) declined to provide those.  Karen attended the 2013 proceeding and reported it was unremarkable.

Sadly, Utu Abe passed away in October 2018, and never fully exercised the role of Trustee.  He was widely respected and regarded throughout the Pacific Basin and will be missed as friend to three-  even four-   generations of Kneubuhls.