In re Estate of Robinson, 140 S.W.3d 801 (Tex. App.—Corpus Christi-Edinburg 2004, pet. denied).
Testatrix named three co-executors in her will, Mary, Garland, and
Bank. Bank declined to serve and Mary convinced the trial court that
Garland was unsuitable under Probate Code § 78(e). The basis of the
unsuitability centered around Garland’s involvement with the attempted
probate of a later will which the court found was invalid because
Testatrix lacked testamentary capacity. The court appointed Mary as the
sole executor and Garland appealed.
The appellate court reversed holding that that the trial court acted
without reference to any guiding rules and principles when it found that
Garland was unsuitable. The court began its analysis by explaining that
because Garland was named in Testatrix’s will as a co-executor, Mary had
the burden of establishing Garland’s disqualification. Because there is
no statutory or judicial definition of “unsuitable,” the court reviewed
Texas cases in which the appellate courts have concluded that a person
was unsuitable to serve as an executor. Although the court recognized
that the trial court has broad discretion in finding a proposed executor
to be unsuitable, the court held that the trial court abused its
discretion, that is, it acted in an arbitrary and unreasonable manner
when it denied Garland’s application.
The court reviewed the facts which the trial court deemed sufficient to
conclude that Garland had a conflict of interest, an adversary
relationship, hostility, an inability to perform his duties, or a duty
to contest (rather than advocate) Testatrix’s later will. Some of the
facts the court cited as showing the unreasonableness of the trial
court’s holding included that Garland was not a beneficiary under the
will, did not have a claim against the estate, was not in conflict
merely he provided accounting services for various of the involved
parties and their businesses, did not takes sides with respect to the
validity of the later will, and was willing to do what ever was legally
required of him as executor even if it meant suing his own accounting
clients.
Moral: Although appellate courts are usually reluctant to overturn a
trial court’s finding that a person is unsuitable to be an executor, the
disqualified person may nonetheless be able to show that the trial
court’s decision was an abuse of discretion.
In re Estate of Robinson, 140 S.W.3d 801 (Tex. App.—Corpus Christi-Edinburg 2004, pet. denied).
The appellate court determined, sua sponte, that it had jurisdiction
to hear the appeal of a case which found that a named co-executor was
disqualified for being unsuitable. The court applying the Crowson v.
Wakeham, 897 S.W.2d 779 (Tex. 1995), test, held that the order
disqualifying the named co-executor from serving was a final order and
thus appealable.
Moral: An appellant should always include a clear analysis of why the
court has jurisdiction to hear the appeal.