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

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

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?

Follow Us

Let Us Help You

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!

Join the List

Who and What we Are

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).
~

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.

Let Us Help You

Learn About a Trustee’s Conflict of Interest in Texas

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).

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.

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.

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.

Contesting a will in Texas

Zoom type workshops?

In the age of Covid-19. we have been thinking of having monthly or bi-monthly, free, Zoom type workshops where participants discuss with us issues that are of interest to them. There would be no agenda, we would discuss areas that the participants wanted to discuss. Participants could attend by computer, tablet or smartphone.

This would be a public Zoom type meeting so nothing personal or confidential should be discussed. Just general questions. Personal or confidential questions should be asked by using the Contact Us tab above.

If you think we should start having these workshops, please leave your email so we can notify you?

We will notify you if we decide there is interest in the workshops. Thanks for letting us know.

Pin It on Pinterest