law-trustee-removal | probate law cases from Houston courts of appeals | Texas probate appeals

A court may, in its discretion, remove a trustee on the petition of an interested person and after
hearing if “the trustee materially violated or attempted to violate the terms of the trust and the
violation or attempted violation results in a material financial loss to the trust” or “in the discretion of
the court, for other cause.”  Act of May 22, 2003, 78th Leg., R.S., ch. 550, 2003 Tex. Gen. Laws
1871, 1872 (amended 2005) (current version at Tex. Prop. Code Ann. § 113.082(a) (Vernon
2007)).[3] Accordingly, we review a court’s removal of a trustee under an abuse of discretion
standard.  Id.; see, e.g.,
Kappus v. Kappus, 284 S.W.3d 831, 838 (Tex. 2009).  Conte v. Ditta (Tex.
App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks)

TRUSTEE REMOVAL CASE LAW

Conte v. Ditta (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks) (opinion on remand from Texas
Supreme Court, which held that “[n]o
statute of limitations period applies in a trustee-removal suit)
Ditta v. Conte, 298 SW3d 187, No. 07-1026 (Tex. Jun. 5, 2009)
(trustee removal suit,
accounting by trustee, appointment of successor trustee, modification of trust due to
change in circumstances) AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT
JUDGMENT IN PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by
Justice Hanks     
Before Justices Alcala, Hanks and Bland   
01-05-00603-CV  Susan Conte v. Louis Ditta, Guardian of the Estate of Doris L. Conte, IP    
Appeal from
Probate Court No 1 of Harris County
Trial Court Judge:  Hon. Russell Austin  
While Susan’s removal disqualified her from reappointment as trustee, her missteps in her fiduciary role as
trustee do not strip away her rights as a beneficiary.  Per the terms of the Trust, the power to appoint a
successor trustee was left to “a majority of the adult Beneficiaries.”  The grounds for Susan’s removal as
trustee have no bearing on her rights as a beneficiary.  The court should have allowed Susan and Joseph,
Jr. to select a successor trustee and simply modified the Trust by restricting their choice of successor
trustee to someone whom it had not previously removed.  Such a restriction would address the problem
recognized by the court, while still giving effect to the grantor’s intentions.
While we agree modification was necessary, the trial court erred by not exercising its discretion in a manner
that conformed to the grantor’s intent.  See Tex. Prop. Code Ann. § 112.054(b).  We conclude that that the
trial court abused its discretion in modifying the terms of the Trust and by appointing the successor trustee
because the court should not have given itself the authority to appoint a successor in place of a majority of
the adult beneficiaries. We sustain Susan’s second issue.

Twyman v. Twyman (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Keyes)
(trustee removal,
temporary injunction appeal fails, UDJA claim)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Keyes    
Before Justices Keyes, Hanks and Bland  
01-08-00904-CV  Nancy D. Twyman v. William Earl Twyman  
Appeal from
Probate Court No 1 of Harris County
Trial Court Judge:  Hon. Russell Austin

Texas Supreme Court Case: Trustee Removal Any Time
Ditta v. Conte, 298 S.W.3d 187, No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (no SoL restricts removal of
trustee, statute of limitations governs
breach of fiduciary duty suit for monetary damages but does not apply
to suit to remove trustee)   

In the Estate of Gaines (Tex.App.- Houston [14th Dist.] July 1, 2008)(Anderson) (probate matter estate,
disqualification of independent executor of estate proper, unsuitable person)
AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by
Justice Anderson  
Before Justices Brock Yates, Anderson and Brown
14-07-00257-CV In the Estate of Margaret Lynn Gaines, Deceased
Appeal from County Court at Law No 1 & Probate Court of Brazoria County
Trial Court Judge: Jerry Lee Mills
Under section 78 the court may disqualify a person from serving as an executor if the court finds that person "unsuitable."  
Tex. Prob. Code Ann. ' 78(e) (Vernon 2003); see Olguin, 931 S.W.2d at 609 (holding the provision disqualifying unsuitable
persons from serving as executor applies to the appointment of an independent executor); Alford, 601 S.W.2d at 410
(applying section 78 to qualification of an independent executor).  No comprehensive, discrete explanation exists delineating
the attributes which make someone unsuitable.  Olguin, 931 S.W.2d at 610; see Boyles v. Gresham, 158 Tex. 158, 161-63,
309 S.W.2d 50, 53-54 (1958) ("Neither the Model Code nor the Texas Probate Code purports to define 'unsuitable,' and we
shall not attempt here to define it.").  The trial court has broad discretion in determining whether an individual is "suitable" to
serve as an executor.  Kay v. Sandler, 704 S.W.2d 430, 433 (Tex. App.- Houston [14th Dist.] 1985, writ ref'd n.r.e.).


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