Kappus v. Kappus, 284 S.W.3d 831 (2009).
Beneficiaries’ Mother (the testator’s ex-wife) moved to have
Independent Executor removed from office because he shared ownership of
certain estate property with his deceased brother and allegedly had a
conflict of interest with the beneficiaries. Mother argued that he could
not adequately represent the estate while seeking to retain his own
share of the property. The trial court denied the motion.
The Tyler Court of Appeals reversed. In re Estate of Kappus, 242 S.W.3d
182 (Tex. App.—Tyler 2007). The court explained that great deference is
given to the testator’s choice of an independent executor. However, the
named executor may be removed for the reasons specified in Probate Code
§ 149C. In this case, the estate and the executor are in conflict
regarding a 4.86% interest in the property because both claim ownership
to this property. The court concluded that the existence of this
conflict requires the trial court to remove the executor.
The Texas Supreme Court reversed. The court examined § 149C and pointed
out that “conflict of interest,” either actual or potential, is not one
of the listed grounds for removal. The court explained that being in a
conflict situation is not the same as misapplication, embezzlement,
gross misconduct, gross mismanagement, or being incapacitated.
The court noted that a trial court has broad discretion to disqualify a
person as being “unsuitable” pre-appointment but that once a person is
appointed, the only grounds for removal are expressly stated in the
statute. Because Mother did not prove one of the enumerated removal
grounds, the removal was improper.
Moral: A person dissatisfied with the testator’s choice of independent
executor has a better chance of keeping that person from being appointed
originally than in obtaining a court order removing that person once he
or she is appointed.