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