Kappus v. Kappus, 284 S.W.3d 831 (2009).

Estate Administration

Removal of Executor


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.