In re Estate of Montemayor, No. 04-14-00391-CV, 2015 WL 1875978 (Tex. App.—San Antonio Apr. 22, 2015, no pet.).
The trial court removed Independent Executor. The
court based its decision on evidence that he lived in the house which
was the main estate asset, was not making good faith efforts to sell the
house, was not making necessary repairs, and prevented the other
beneficiaries from accessing the house. He also stated that he would
live in the house until the day he died. The order stated that he was
guilty of gross mismanagement and was incapable of performing his
fiduciary duties due to a material conflict of interest and thus removal
was authorized under Estates Code § 404.0035(b)(3), (5).
Independent Executor appealed.
The appellate court affirmed. The court explained
that the trial court’s decision is reviewed under an abuse of discretion
standard and there was no evidence of such abuse. The court also
rejected Independent Executor’s claim that removal was improper because
the pleadings did not specifically use the terms “gross misconduct” and
“gross mismanagement” since the pleadings gave fair notice by alleging
breaches of fiduciary duty and self-dealing.
Moral: A trial court’s order removing an
independent executor from office will be difficult to overturn on
appeal.