January 17, 2022

Volume XII, Number 17

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January 15, 2022

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Court Affirms Decision That Executor Applicant Was Unsuitable For That Position

In In the Estate of Johnson, an applicant to be an independent administrator appealed a court’s decision to not appoint him due to his being unsuitable. No. 02-20-00133-CV, 2021 Tex. App. LEXIS 7138 (Tex. App.—Fort Worth August 26, 2021, no pet. history). The court of appeals first discussed the standard of review of orders finding a person unsuitable:

A probate court’s order finding a person is unsuitable to serve as executor is reviewed under an abuse-of-discretion standard. When applying an abuse-of-discretion standard, the normal sufficiency-of-the-evidence review is part of the abuse-of-discretion review and not an independent ground for reversal. The probate court abuses its discretion if its actions are unreasonable or arbitrary or without reference to any guiding rules or principles. “Under an abuse of discretion standard of review, we must make an independent inquiry of the entire record to determine if the trial court abused its discretion and are not limited to reviewing the sufficiency of the evidence to support the findings of fact made.”

Id. The court held that the person contesting the application has the burden to establish that the applicant is not suitable. The court noted that “Unsuitability is not defined in the Estates Code, and case law has not delineated any comprehensive, discrete explanation of the attributes that make someone unsuitable. ‘It would appear, therefore, that the legislature intended for the trial court to have wide latitude in determining who would be appropriate for the purpose of administering estates.’” Id.

The court then reviewed the record and held that there was sufficient evidence to support the trial court’s exercise of discretion in finding the applicant unsuitable:

The evidence showed that Sesin took property from a home in Arkansas and was questioned by the police concerning that property, which remained in the possession of Sesin at the time of trial. On direct, Sesin testified that he received a loan for his business from Eric in January or February. The text messages and the cross-examination actually showed that the loan was obtained at some point after March 19—less than a month before Eric’s death. Sesin’s testimony was that Eric was terminally ill at the time he requested the loan and that it was necessary for Eric to accompany him and Janelin to the bank to get the bank to release the funds. Sesin was administering morphine, when requested by Eric, during this same time period. The text messages also show that the siblings were all involved in facilitating the change in Eric’s power of attorney in a manner that would insure that Jane had no advance notice. On cross-examination, Sesin was also asked questions about the fiduciary duty of an executor that required “high trust and responsibility.” Jane’s counsel followed that with questions concerning how Sesin would treat interests Jane might have in two houses owned by Eric, Jane, or both. Under the will, Jane had no claim to the Fort Worth property. Sesin testified that when Jane first read the will that was later offered into probate, Jane asked Eric to leave her the house in Fort Worth. Sesin recounted that Eric “adamantly denied her and said that was for his children.” While the Georgia property was not specifically addressed in the will, a residual clause disposed of the residue of Eric’s estate equally between Jane and the three children.

We find that the probate court did not abuse its discretion in finding Sesin was not qualified to act as executor… The evidence showed there was substantial discord between Sesin and Jane, and the trial court made that specific finding. When a claim against the estate is controversial, the trial court is within its discretion to evaluate whether the claim against the estate presents such a conflict that the executor, who is also a claimant, is not suitable to act as an administrator. There is also some evidence to support the trial court’s finding of doubt as to Sesin’s trustworthiness due to inconsistencies in his testimony concerning the loan and due to the surreptitious manner in which he and his siblings operated to get Eric to make changes to important legal documents without Jane’s knowledge. Because this is some evidence that Sesin pursued his own self-interests over the interests of Jane, the trial court’s determination that Sesin was unfit to serve as executor was neither arbitrary, nor unreasonable, nor made without reference to guiding principles. We find that there is more than a scintilla of evidence that Sesin had a substantial conflict of interest with Jane and that considering all the evidence, the trial court’s finding was not clearly wrong or manifestly unjust.

Id. (internal citations omitted).

© 2022 Winstead PC.National Law Review, Volume XI, Number 323
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About this Author

David Johnson Financial Institution lLtigation Winstead Law Firm Fort Worth Texas
Managing Shareholder - Fort Worth

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. 

David's financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class...

817.420.8223
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