Guyton v. Monteau, 332 S.W.3d 687 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

Estate Administration

Personal Representative



At first, the trial court appeared willing to appoint Daughter as the successor administratrix even though she had been convicted of a Class C misdemeanor five years previously. At the urging of Mother, the court reopened the evidence and took judicial notice of all matters in the record. The court then ruled Daughter was unsuitable due to family discord, hostility, and a potential conflict of interest. Daughter appealed.

The appellate court reversed. The court recognized that there is no legislative or judicial definition of what causes a person to be unsuitable to serve as a personal representative under Probate Code § 78 and thus the trial court has broad discretion to make that determination. The appellate court then determined that the trial court abused its discretion by making an arbitrary and unreasonable determination of unsuitability without reference to guiding principles.

The court explained that the only ground for disqualification properly before the trial court was the misdemeanor conviction which the court rejected. The alleged discord, hostility, and potential conflict of interest were never placed at issue but rather were raised by the trial court sua sponte after the hearing was over and without giving the parties proper notice. Even if the court may determine unsuitability sua sponte, the evidence did not support the court’s ruling. The court abused its discretion by taking judicial notice of all documents and testimony in the dozen years the estate had been litigated. Judicial notice is only for facts not subject to reasonable dispute; personal knowledge is not judicial knowledge.

The appellate court also rejected an argument that if Daughter’s attorney could serve as the estate’s attorney, then Daughter could not serve and that estate expenses are less if the personal representative is an attorney. A personal representative, even if an attorney, may recover reasonable attorney fees. An estate can be separately charged for both legal and administrative services even if they are both performed by the same person.

Moral: To show that a person is unsuitable to serve as a personal representative, “real” evidence of unsuitability is needed, rather than speculation and innuendo. To have the greatest impact, this evidence should be brought forth in an adversarial context so there is notice and opportunity to rebut.