Removal Suits May be Subject to the Texas Anti-SLAPP, TCPA Law

Removal Suits May be Subject to the Texas Anti-SLAPP, TCPA Law

by | Last updated Dec 16, 2020 | How, Removal

Problems with Removal of Trustee or Executor

Trustees and executors are fiduciaries and owe duties to the beneficiaries of the trust or estate that they are in charge of. If they breach those duties, they can be removed.

The Texas Anti-SLAPP, TCPA, law was established to protect a person’s right to free speech, free association and the right to petition. When a suit is filed and a motion to dismiss under the Texas Anti-SLAPP, TCPA law is filed, the suit stops and the judge must rule on the motion. If he grants the motion, the suit is dismissed and the person who brought the suit is required to pay the attorney’s fees of the person sued. He may also have to pay expenses and sanctions. The law is a draconian sword hanging over suits.

The law has been applied in many different suits like divorce actions, collection suits, contract cases, etc. How far the law reaches is still being ironed out in Texas.

Recently, there was a suit to remove a trustee. Does it apply to removal actions?

A suit was filed to remove a trustee. The trustee filed a motion to dismiss under the Texas Anti-SLAPP, TCPA, law. You can read about it below.

Suit to Remove Trustee as a Texas Anti-SLAPP, TCPA Claim

Does the Texas Anti-SLAPP, TCPA law apply? Well, in the case, the court assumed without deciding that it did then went on to rule that the people against whom the motion to dismiss was filed met their burden and proved their defense. The motion to dismiss was denied.

If the people who filed the removal action had not met their burden, their removal suit might have been dismissed and they would have had to pay the attorney’s fees of the trustee. Just be aware!

Learn About a Trustee’s Conflict of Interest in Texas

by | Last updated Jan 2, 2020 | Removal

In Texas a fiduciary can be removed if he has a conflict of interest with the beneficiary.

In a recent case, two brothers owned a farm.  Both had done extra work on the farm.  One of the brothers died.  The one that died had an ex-wife and two children.  He left his property to his children.  His will created a trust for them.  He named his brother both as executor of the will and as the trustee of the trust.  His brother was, therefore, a fiduciary under the will and under the trust.

The wife asked the court to remove the brother as executor and as trustee.  The trial court refused to remove him and

the wife appealed.  The court of appeals agreed with the wife and removed the brother.  The court’s reasoning was based on the fact that the shared ownership between the executor/trustee and the estate was a conflict of interest.  The court must remove a fiduciary when there is a conflict of interest between the fiduciary and the beneficiary. 242 /3 182.

Update:  The Supreme Court of Texas reversed this case and ruled that, under the facts of this case, the executor could not be removed.  If you think that a fiduciary has a conflict of interest, you should contact us to evaluate the case in light of this Supreme Court decision.P.C. 149C and Prop. C. 113.082. 284 /3 831.

Update 2: The Texas legislature passed legislation that has the effect of overruling the Supreme Court’s decision in the first update. Now, a “material conflict of interest” will require removal of an executor or trustee. P.C.149C(a)(7).

By a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about Texas inheritance laws, inheritance rights, probate limits, have a family inheritance dispute, a property dispute or want to know the reasons for contesting a will or protecting a will from a contest and need an inheritance lawyer, we can help. Please click on the “Contact Us” tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Read About Gross Mismanagement by a Trustee.

by | Last updated Jan 2, 2020 | Removal

A fiduciary can be removed because of gross mismanagement.

In a recent case, an attorney was appointed as the Independent Executor of his great uncle’s estate.  He was not a beneficiary under the will.  He hired himself to be the attorney for the estate.  The will did not provide for the attorney to receive a fee for his services.

The Inventory and Appraisement was filed over one year and seven months after he was appointed independent executor.  The probate code requires the  Inventory and Appraisement to be filed within 90 days.  He sold two parcels of the estate’s real property and paid himself nearly $100,000 as “compensation.”  Additional evidence showed that the attorney failed to pay property taxes or correct code compliance violations on the real estate after receiving notices from the city. Accordingly, the estate was charged penalties and the only remaining property in the estate was scheduled for foreclosure

due to non-payment of property taxes. Other evidence admitted in the record reflected he lent $25,000 of the estate’s money to one of his own clients. The loan was not documented. Accordingly, there was no due date for repayment by the client, no agreement to pay interest, and no collateral was provided to secure payment. The attorney had not attempted to collect any payments on this loan at the time of the hearing.

Faced with this record, the trial court removed the attorney and required him to repay the estate all of the money that he had received.  While this is a really bad case of mismanagement, almost any of the actions by the attorney listed above would require the court to remove him as the executor.

If you suspect mismanagement of an estate in which you have an interest, you should act immediately.  If you wait too long, the estate could be depleted.

By a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about Texas inheritance laws, inheritance rights, probate limits, have a family inheritance dispute, a property dispute or want to know the reasons for contesting a will or protecting a will from a contest and need an inheritance lawyer, we can help. Please click on the “Contact Us” tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Breach of Fiduciary Duty has a Four Year Statute of Limitations

by | May 20, 2019 | Probate, Removal, Trustee

Breach of Fiduciary Duty has a Four Year Statute of Limitations

I wrote an article that explains that executors, trustees, people holding a power of attorney and others are fiduciaries. You can view that here.

I have written before about the limitations period for breach of fiduciary duty here.  In that article, I talked about a Texas Supreme Court ruling that said there was no limitations period for an action to remove a fiduciary. The idea being that the wrongs being committed for which a removal is sought are ongoing. There is no specific date that a wrong occurred.

Limitations for a specific wrong do have a specific date and the four year statute of limitations applies. In a recent case, a trustee gave a deed of some of the property in the trust. The plaintiffs “asserted that they were residual, contingent beneficiaries of testamentary trusts…” and that the deed denied them benefits that they would have otherwise received because there was not much left in the trust.

The deed was filed in 2010 but suit was not filed until 2015, more than four years after the deed was recorded.  The appeals court upheld the trial courts dismissal because of limitations. 11-16-00253-CV.

Oral Statements by the Testator about a Texas Will

by | Jan 16, 2018 | Probate, Procedure, Property, Removal

When a person tells someone how he wants his property handled when he dies but he has a written will or trust, the oral statements will not change how his property is handled if the will or trust is unambiguous.

Problem

Someone testifies in a Texas will or trust contest that the testator told them how he wanted his property distributed. The will or trust of the testator specifies a different way to distribute the property. What effect do the testator’s statements have on the Texas will or trust?

Facts

In her lawsuit, Blanca alleged that when Frank decided to sell the Ranch, he told family members they would be given an opportunity to match any offer he received.

Blanca filed the underlying lawsuit seeking a temporary restraining order and injunction to prevent Frank from conveying the (property based on the statements by the testator).

The court had to decide if or how this evidence should be treated.

ESTATE OF RODRIGUEZ, 04-17-00005-CV, (Tex. App. – San Antonio January 10, 2018)

Trust versus Will in Texas

Since this case dealt with a trust, the court stated the Texas’ rules for construing trusts.

The same rules of construction apply to both wills and trusts. The construction of an unambiguous trust instrument is a question of law for the trial court.

An appellate court may not focus its attention on what the testator intended to write, but on the meaning of the words he actually used.  That is, we must not redraft a trust instrument to vary or add provisions under the guise of construction of the language of the trust to reach a presumed intent. No speculation or conjecture regarding the intent of the testatrix is permissible where, as here, the will is unambiguous, and we must construe the will based on the express language used therein.

This court must harmonize all terms to give proper effect to each part of the instrument; in construing the instrument, we must give effect to all provisions and ensure that no provisions are rendered meaningless.  Provided the language of the instrument unambiguously expresses the settlor’s intent, there is no need to construe the instrument because “it speaks for itself.”

What are the rules for construing a trust in Texas?

ESTATE OF RODRIGUEZ, 04-17-00005-CV, (Tex. App. – San Antonio January 10, 2018)

Ruling

Based on the facts of the case and applying Texas law, the court found that the trust stated how the property was to be handled and that any statements by the Testator to the contrary were to be disregarded.

Notes

There are some Texas cases where a will or trust was ambiguous and statements by the Testator were used to determine what he meant. In this case, the trust was not ambiguous.

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Oral Statements by the Testator about a Texas Will

Can An Executor Sell Property To Himself

by | Jul 21, 2016 | Accounting, Procedure, Property, Removal

Facts

Can an executor sell property to himself?

An executor, a trustee, and a holder of a power of attorney are all fiduciaries and owe the upmost duty to those they serve. In a Texas case out of the Houston Court of Appeals in 2016, a will had given a certain piece of land to several of the decedent’s children share and share alike. The will appointed one of the children as the executor of the estate.
The executor sold the property to himself instead of giving it to all the children. The other siblings were not happy and one of them asked the court to void the deed and to remove the executor for his actions. The court did remove the executor and voided the deed. The executor appealed.
The executor told the appeals court that the will had a provision that the executor could “sell, manage, and dispose” of the property in the estate. Relying on this provision in the will, the executor said that he had the power under the will to sell the property to himself.

An executor who sells property to himself is self-dealing

The Court of Appeals was not impressed with the executor’s argument. The court held that the Texas Estates Code did not allow the executor to sell the property to himself unless it was authorized by the will. §356.651, §356.652 and §356.655. They held that the use of the words “sell, manage, and dispose” were not a sufficient authorization for him to deed the property to himself. They upheld the trial court’s ruling that the deed was void and that the executor be removed.

To Learn more about fiduciaries and their duties and liabilities, see this article.

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