Estate Administration

Disqualification of Executor


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.


Estate Administration

Appellate Jurisdiction

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.