LIHUE — A former Kauai state senator and her siblings are defendants in a trust fraud case filed by their mother in 5th Circuit Court.
Evelyn Ohai Fernandes, 87, individually and as trustee of William Ernest Fernandes and Evelyn Ohai Fernandes Revocable Living Trust, is suing four of her children and grandchildren regarding five properties near old Kapaa town that were transferred into a trust.
The civil complaint filed by the firm Richards & Zenger, along with Robin Melchor of Honolulu, charges Lehua Fernandes with fraudulent inducement and misrepresentation, intentional negligence, undo influence, and breach of fiduciary duty and civil theft for misappropriating deed properties.
Lehua Fernandes was appointed a state senator for District 25 from 1982 to 1984, and won the District 7 seat in 1992 and 1994. She lost her bid for a third term in the 1998 primary election.
The complaint names 25 more defendants, either siblings or grandchildren, on charges of unjust enrichment, negligence, conspiracy and collusion to commit fraud, misrepresentation and conversion of a constructive trust or equitable lien.
The case dates back to 2011, when Evelyn Fernandes had surgery to have a pacemaker installed. She was recovering when her husband William “Billy” Fernandes, a former Territorial and state representative, senator, and county councilman, died at 88 on June 2, 2011.
The couple had sought approval to create 14 separate condominium property regime units on a makai property so that each of their 14 grandchildren would have separately marketable properties on which to build their own homes. After the death, Evelyn retained unlimited rights to the trust as the surviving spouse, and sought council from her daughter Lehua on how to complete the CPR process.
Lehua counseled Evelyn to prepare for the possibility of passing before the process was complete, according to the complaint. She advised drawing up signed conveyance instruments to grant the grandchildren equal shares of the property that would go into effect if Evelyn passed before the CPR process was complete.
Lehua drafted 14 separate quitclaim deeds, each with one-fourteenth percent interest in the makai property of the trust to the grandchildren. She had them notarized on Oct. 24, 2012, and then had Evelyn sign each deed.
Sometime between March 24 and April 8, 2014, Lehua allegedly entered Evelyn’s home without permission or other authorization, the complaint says. She took possession of the original 14 deeds from a safe, and according to the complaint, removed the signature page from one of the original deeds and drafted a conveyance of three properties to the defendants.
A commercial property was conveyed to Evelyn’s children, Lehua, Maile, Kimo and Napua. A second property was conveyed to Lehua, John, Kimo and Kepa, and a third to 15 grandchildren.
Lehua recorded the quitclaim deeds without authorization or approval, the complaint states, and she continues to retain control over the remaining 11 quitclaim deeds.
Lehua Fernandes, 65, operated a Kauai law firm with former spouse Mike Salling on one of the properties. She is no longer in practice.
The complaint asserts that the trust properties were acquired through mistake or fraud and force of law, and that the circumstances would make the defendants trustees of an implied trust for the benefit of the plaintiff.
Mark Zenger, an attorney for Evelyn, declined to comment. The last known number for Lehua Fernandes was no longer in service and she could not be reached for comment.
The case is not assigned to a judge.