In In re Poe Trust, there were three co-trustees of a trust, and the trust required them to act jointly. No. 20-0179, 2022 Tex. LEXIS 548 (Tex. June 17, 2022). One of those trustees (Dick) effectively acted as a sole trustee during his life. After Dick died, his executors and one of the other trustees (Richard) became embroiled in litigation. The co-trustees could then not agree on trust decisions, and one of the trustees filed suit to modify the trust to appoint additional trustees, to remove the unanimity requirement, and other trust modification requests. The trial court granted the relief after it denied Richard’s demand for a jury trial. The court of appeals reversed the trial court’s order, holding that Richard had a right to a jury trial on underlying fact issues.

The Texas Supreme Court reversed the court of appeals and held that parties to trust modification proceedings were not entitled to a jury trial under the statute, but reversed and remanded for the court of appeals to consider whether the statute passed constitutional muster. The Court first discusses the authority of a trial court to modify a trust:

Before the enactment of the Trust Code, courts derived authority to modify trusts under the “rule or doctrine of deviation implicit in the law of trusts.” Under this doctrine, a court had the power to “order a deviation from the terms of the trust if it appears to the court that compliance with the terms of the trust is impossible, illegal, impractical or inexpedient, or that owing to circumstances not known to the settlor and not anticipated by him, compliance would defeat or substantially impair the accomplishment of the purpose of the trust.” In enacting Section 112.054, the Legislature essentially codified the doctrine of deviation. Section 112.054, titled “Judicial Modification, Reformation, or Termination of Trusts,” currently provides that “[o]n the petition of a trustee or a beneficiary, a court may order” certain changes to a trust. Tex. Prop. Code § 112.054(a). But, before a court may do so, one or more enumerated statutory predicates must be shown: (1) the purposes of the trust have been fulfilled or have become illegal or impossible to fulfill; (2) because of circumstances not known to or anticipated by the settlor, the order will further the purposes of the trust; (3) modification of administrative, nondispositive terms of the trust is necessary or appropriate to prevent waste or impairment of the trust’s administration; (4) the order is necessary or appropriate to achieve the settlor’s tax objectives or to qualify a distributee for governmental benefits and is not contrary to the settlor’s intentions; or (5) subject to Subsection (d): (A) continuance of the trust is not necessary to achieve any material purpose of the trust; or (B) the order is not inconsistent with a material purpose of the trust. If one or more of these predicates is established, a court is empowered to order “that the trustee be changed, that the terms of the trust be modified, that the trustee be directed or permitted to do acts that are not authorized or that are forbidden by the terms of the trust, [or] that the trustee be prohibited from performing acts required by the terms of the trust.” But this statutory power is not unbounded. Section 112.054(b) requires a court to exercise its discretion to order a modification “in the manner that conforms as nearly as possible to the probable intention of the settlor.”

Id. The Court then held that Section 112.054 does not grant a right to a jury trial in the statute:

Unable to discern a right to a jury trial from the text of Section 112.054, the court of appeals reasoned that the Trust Code “generally provides for jury trials.” For that proposition, it relied on Section 115.012, which is titled “Rules of Procedure” and states: “Except as otherwise provided, all actions instituted under this subtitle [the Trust Code] are governed by the Texas Rules of Civil Procedure and the other statutes and rules that are applicable to civil actions generally.” According to the court of appeals, the rules “outline how one requests a jury” and “[c]ompliance with those rules would thus give Richard a right to a jury trial.” We disagree. Nothing in the text of Section 115.012 can be understood to establish a jury right. Section 115.012 simply states that actions brought under the Trust Code are controlled by the ordinary procedures for civil actions. The court of appeals correctly noted that the rules articulate procedures for requesting a jury. But as we have explained, these procedural requirements are “prerequisites to a jury trial, not guarantees of one.” Such rules merely reflect that a jury right in a civil case is “not self-executing” and that a litigant must take certain steps “to invoke and perfect” his jury right. They presume that the litigant has a jury right to invoke in the first place. The Trust Code’s incorporation of the Rules of Civil Procedure cannot be construed to create a jury right where one does not already exist. The procedures established by those rules are “not meant to alter the parties’ . . . right to a jury trial.” In short, no right to a jury trial in a judicial trust-modification proceeding was created by Trust Code Section 112.054, Trust Code Section 115.012, or the Texas Rules of Civil Procedure, whether they are viewed alone or in combination.

Id. The Court then reversed and remanded to the court of appeals for a determination of whether Richard had a right to a jury trial based on the Texas Constitution, whether or not Section 112.054 provided an express right to a jury trial:

The Texas Constitution provides “two guarantees of the right to trial by jury” in civil proceedings. The Bill of Rights ensures that the “right of trial by jury shall remain inviolate.” Our cases have said, and the parties here do not dispute, that this provision maintains a jury right for the sorts of actions tried by jury when the Constitution was adopted and, thus, “only applies if, in 1876, a jury would have been allowed to try the action or an analogous action.” At the time of the Constitution’s adoption, there was no common-law right to a jury trial in equitable actions and, consequently, our courts have held that the Bill of Rights did “not alter the common law tradition eschewing juries in equity.” However, to provide a jury right in equitable actions, “a special clause was introduced.” In our present Constitution, that guarantee is found in Article V, the Judiciary Article. It provides: “In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.” We have held, and no party here disputes, that the Judiciary Article “covers all ’causes’ regardless of whether a jury was available in 1876.” … The court of appeals confronted none of these constitutional arguments, which were first presented on rehearing. By that time, the court of appeals had concluded that the Trust Code’s incorporation of the Rules of Civil Procedure conferred a right to a jury trial. That holding made in-depth treatment of the constitutional arguments unnecessary. Our holding today, however, changes that… Following our preferred practice, we remand the case to the court of appeals to address petitioners’ constitutional arguments in the first instance. And we echo the concurrence’s view that amici input could greatly aid the court of appeals’ decisional process.

Id.

Interesting Note: The Court would like the court of appeals to opine on whether underlying fact issues should be submitted to a jury before a trial court can modify a trust. First, in many trust modification proceedings there are underlying fact issues. The Court called them “statutory predicates.” These include: whether the purposes of the trust have been fulfilled or have become illegal or impossible to fulfill? Whether the proposed modification will further the purposes of the trust because of circumstances not known to or anticipated by the settlor? Whether modification of administrative, nondispositive terms of the trust is necessary or appropriate to prevent waste or impairment of the trust’s administration? Whether the modification is necessary or appropriate to achieve the settlor’s tax objectives or to qualify a distributee for governmental benefits and is not contrary to the settlor’s intentions?

True, a district court or a probate judge may be better in terms of education or experience to determine these issues. However, there are many issues where a district court or probate court judge are more educated or experienced, yet the parties have a right to a jury trial. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000) (a jury should determine the amount of damages at law that should be awarded to a plaintiff where there is a fact issue). Historically, in Texas, a jury’s verdict has a “special, significant sacredness and inviolability.” Crawford v. Standard Fire Ins. Co., 779 S.W.2d 935, 941 (Tex. App.—Beaumont 1989, no writ). The Texas Supreme Court has already acknowledged that a right to a jury is a constitutional right that can only be waived by a voluntary, knowing, and intelligent act based on full awareness of the legal consequences:

[A] waiver of constitutional rights must be voluntary, knowing, and intelligent, with full awareness of the legal consequences. We echo the United States Supreme Court’s admonition that “waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Under those conditions, however, a party’s right to trial by jury is   afforded the same protections as other constitutional rights.

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 127-28 (Tex. 2004). See also David F. Johnson, The Enforcement of Contractual Jury Waiver Clauses in Texas, 62 Baylor L. Rev. 649, 653-54 (2010). So, courts that care about the United States or Texas Constitutions should bend over backwards to find that a party has a right to a jury on fact issues.

The Texas Supreme Court would like the court of appeals to analyze whether the modification of a trust, which is founded in equity, should have fact issues decided by a jury. A court, in its equitable jurisdiction, should determine whether an equitable remedy should be granted. See Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428-29 (Tex. 2008) (“As with other equitable actions, a jury may have to settle disputed issues about what happened, but “the expediency, necessity, or propriety of equitable relief’ is for the trial court ….”). The Texas Supreme Court stated: “Although a litigant has the right to a trial by jury in an equitable action, only ultimate issues of fact are submitted for jury determination. The jury does not determine the expediency, necessity, or propriety of equitable relief. The determination of whether to grant an injunction based upon ultimate issues of fact found by the jury is for the trial court, exercising chancery powers, not the jury.” State v. Texas Pet. Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979); Bostow v. Bank of Am., No. 14-04-00256-CV, 2006 Tex. App. LEXIS 377 (Tex. App.—Houston [14th Dist.] Jan. 17, 2006, no pet.); Shields v. State, 27 S.W.3d 267, 272 (Tex. App.—Austin 2000, no pet.). The jury’s findings on issues of fact are binding; however, equitable principles and the appropriate relief to be afforded by equity are only to be applied by the court itself. Shields, 27 S.W.3d at 272.

For example, the Texas Supreme Court previously held: “A jury does not determine the expediency, necessity, or propriety of equitable relief such as disgorgement or constructive trust.” Energy Co. v. Huff Energy Fund LP, 533 S.W.3d 866 (Tex. 2017) (citing Burrow v. Arce, 997 S.W.2d 229, 245 (Tex. 1999)). “Whether ‘a constructive trust should be imposed must be determined by a court based on the equity of the circumstances.’” Id. “The scope and application of equitable relief such as a constructive trust ‘within some limitations, is generally left to the discretion of the court imposing it.’” Id. (citing Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736 (Tex. App.—San Antonio 2007, pet. denied)). “If ‘contested fact issues must be resolved before a court can determine the expediency, necessity, or propriety of equitable relief, a party is entitled to have a jury resolve the disputed fact issues.’” Id. (citing DiGiuseppe v. Lawler, 269 S.W.3d 588, 596 (Tex. 2008). “But uncontroverted issues do not need to be submitted to a jury.” Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 815 (Tex. 2005)). See also Wilz v. Flournoy, 228 S.W.3d 674, 676-77 (Tex. 2007) (noting that in the underlying trial, the jury found that no personal funds were used to purchase the farm, which justified the award of a constructive trust on the farm.); Paschal v. Great W. Drilling, Ltd., 215 S.W.3d 437, 445 (Tex. App.—Eastland 2006, pet. denied) (“The jury found that all of the premiums on the four policies were paid with funds that Alan stole from Great Western. Accordingly, the trial court imposed a constructive trust on all of the funds remaining in existence from the life insurance proceeds.”).

So, traditionally, if a party seeks an equitable remedy, the trial court normally has the sole right to resolve that request, but if there is some underlying fact issue that must be resolved with regard to the equitable remedy, then that fact issue should be submitted to a jury. The court of appeals in Poe will have to determine whether facts, such as a settlor’s intent, should be determined by a judge or a jury. Traditionally, courts would hold that such a determination should be determined by a jury due to Texas’s strong preference for upholding a party’s right to a jury trial. However, the Texas Supreme Court has seemingly not been that concerned about a party’s right to a jury trial in other contexts. See, e.g., In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 127-28 (Tex. 2004) (enforcing contractual jury waiver for the first time); In re Gen. Electric, 203 S.W.3d 314, 316 (Tex. 2006) (placing the burden of a voluntary, knowing, and intelligent waiver on its head by making an almost irrebuttable presumption that a jury-waiver clause that is not inconspicuous is enforceable); In re Bank of Am., 278 S.W.3d 342, 343 (Tex. 2009) (oddly issuing a writ of mandamus directing the court of appeals to vacate and withdraw the opinion and judgment entered by the court of appeals, which enforced a party’s right to a jury trial, where the complaining party had an adequate remedy by appeal which it waived).

In In re Estate of Poe, shortly before his death, Dick, who was the sole director of Poe Management, Inc. (PMI), authorized the corporation to issue new shares that he bought for $3.2 million. No. 20-0178, 2022 Tex. LEXIS 544 (Tex. June 17, 2022). This made Dick the majority owner of PMI, which was the general partner of several Poe-owned businesses. As a result of the purchase, Dick’s death vested control of the family enterprise in the two co-executors of Dick’s estate rather than Dick’s son, Richard, who was PMI’s only other shareholder. Richard sued Dick’s estate for breaching formal fiduciary duties and also breaching informal fiduciary duties to him. The trial court and court of appeals ruled for Richard, and Dick’s co-executors appealed to the Texas Supreme Court.

The Court first discussed the formal fiduciary duties owed by a director:

Under Texas law, the business and affairs of a corporation are managed through a board of directors. Directors owe a fiduciary duty to their corporations in the actions they take as directors. A director’s fiduciary status creates three broad duties: duties of obedience, loyalty, and due care. These fiduciary duties run to the corporation, not to individual shareholders or even to a majority of shareholders. As we explained in Ritchie, a director’s fiduciary duty includes a duty to dedicate “uncorrupted business judgment for the sole benefit of the corporation.”

Id. The Court then turned to informal fiduciary duties:

Our Court has recognized that an “informal” fiduciary duty may arise from “a moral, social, domestic or purely personal relationship of trust and confidence.” We have described the types of confidential relationships that can give rise to a fiduciary duty imprecisely as those “in which influence has been acquired and abused, in which confidence has been reposed and betrayed.” But we have always made clear that “we do not create such a relationship lightly.” And we have never recognized an informal fiduciary duty within the context of the operation or management of a corporation, in which the corporation’s directors have clearly defined duties to exercise their business judgment for the sole benefit of the corporation.

Id. In this case, Richard alleged that, based on their personal relationship of “confidence and trust,” Dick owed a fiduciary duty to Richard individually. Richard alleged that Dick had to manage PMI in a manner consistent with Richard’s best interest. The Court disagreed with this argument:

Here, the jury was asked whether Richard justifiably placed trust and confidence in Dick “to operate PMI in a manner that was consistent with Richard’s best interest.” We have never held, in Ritchie or elsewhere, that a corporation’s director, while owing formal fiduciary duties to the corporation requiring him to manage the corporation’s affairs for the sole benefit of the corporation, simultaneously owes an informal fiduciary duty to a shareholder to operate the corporation for that shareholder’s benefit or consistent with the shareholder’s best interest. On the contrary, Ritchie suggests those two duties are incompatible. We reaffirm this principle today and hold that a director cannot simultaneously owe these two potentially conflicting duties. By electing to form and own PMI as a corporation, the parties disclaimed the existence of duties regarding the management of the corporation’s affairs beyond those that exist by statute or arise from the corporation’s formation documents or other agreement. Accordingly, we conclude the probate court erred in submitting Question 1 because, as a matter of law, a corporation’s director cannot owe an informal duty to operate or manage the corporation in the best interest of or for the benefit of an individual shareholder. A director’s fiduciary duty in the management of a corporation is solely for the benefit of the corporation.

Id. The Court then went through an analysis concerning charge errors, and held that submission of the informal fiduciary duties was harmful error. The Court rendered that there was no informal fiduciary duty claim in this case, and remanded for further proceedings on other claims.

Interesting Note. Texas courts have held that you have to judge parties’ actions by the duties that they owe in the capacity that they are acting. For example, in Benge v. Thomas, a trust owned an interest in a limited partnership that contained mineral interests. No. 13-18-00619-CV, 2020 Tex. App. LEXIS 6888 (Tex. App.—Corpus Christi August 27, 2020, no pet.). Benge, the beneficiary, sued Missi, the trustee, for various claims of breach of fiduciary duty arising from the operation of the limited partnership and other issues. The court of appeals first addressed Benge’s claim that Missi breached her fiduciary duty to the trust by allowing the limited partnership’s general partner to make objectionable transactions. Benge claimed that Missi breached her fiduciary duty in her capacity as trustee because she should have prevented the general partner from making the transactions. The court disagreed:

AFT Property as general partner had the authority to make these decisions. The evidence establishes as a matter of law that the 2012 Trust as a limited partner had no decision-making rights regarding AFT Minerals’ assets. Benge’s complaints all involve alleged damages to AFT Minerals and not to Benge herself. Thus, AFT Minerals would have had to bring these claims and not Missi in her capacity as trustee or Benge as a remainder beneficiary.

Id. The court clearly delineated the capacity in which the defendant was acting and judged her conduct by the relevant standard. In other words, the court did not blend the capacities together and judged her in her trustee capacity for all actions taken in all capacities.

Further, in Adam v. Harris, a court of appeals held that a clear line exists between actions of a trustee and those of an officer of a corporation owned wholly or in part by the trust, even where the same person “wears both hats.” 564 S.W.2d 152, 156-57 (Tex. App.—Houston [14th Dist.] 1978, writ ref’d n.r.e.). The Adam court stated:

It is uncontested that while Robert Adam was a trustee of the testamentary trust and, by virtue of that position, a director of the truckline company, insurance for the company’s trucks was purchased from Adam Gordon Insurance Agency, an agency owned by Robert Adam’s brothers. The Harrisons assert that this is self-dealing in violation of section twelve of the Texas Trust Act, Tex.Rev.Civ.Stat.Ann. art. 7425b-12 (Supp.1978), and that Robert Adam and all those who knowingly participated in this breach of trust are liable as joint tortfeasors for any profits they may have made. The flaw in this argument, however, is that whatever breach of fiduciary duty Robert Adam committed was in his capacity as director of the truckline corporation and not in his capacity as trustee. Robert Adam did not self-deal with the trust property, the shares in the corporation, but rather with the corporation’s property, the monies used to purchase the insurance for the trucks. Section twelve of the Texas Trust Act directs that a “trustee shall not buy nor sell . . . any property owned by or belonging to the trust estate . . . from or to . . .  a relative . . . .” Here, no property either entered or left the trust res ; the trustee neither bought nor sold trust property. Under these circumstances we hold that no cause of action for self-dealing lies against anyone on the basis of the beneficiary-trustee relationship.

Id.

The Poe decision strengthens the argument that a party wearing multiple hats (capacities) should solely be judged by the duties imposed upon the person by the had that they are wearing when they are making an act. This is good precedent for parties that set themselves up in multiple capacities. If Dick’s actions were done solely in his capacity as a director, then he should only be judged by his director duties. That is not particularly new precedent in Texas (as seen above).

Yet, the opinion oddly states that a person magically disclaims an informal confidential relationship capacity by entering into a director (and presumably officer) position in a company. This is certainly new to Texas jurisprudence. In Ritchie v. Rupe, the Texas Supreme Court held: “Absent a contractual or other legal obligation, the officer or director has no duty to conduct the corporation’s business in a manner that suits an individual shareholder’s interests when those interests are not aligned with the interests of the corporation and the corporation’s shareholders collectively.” 443 S.W.3d 856, 868 (Tex. 2014) (emphasis added). The court stated in a footnote to the italicized language above that: “We have recognized that in some circumstances a special relationship of trust may arise between parties prior to and independent from the parties’ business relationship, which can give rise to informal fiduciary duties.” Id. at n. 58. This was based on the following language from  Schlumberger Tech. Corp. v. Swanson, which stated:

An informal relationship may give rise to a fiduciary duty where one person trusts in and relies on another, whether the relation is a moral, social, domestic, or purely personal one. See Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 261 (Tex. 1951). But not every relationship involving a high degree of trust and confidence rises to the stature of a fiduciary relationship. See Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992). In order to give full force to contracts, we do not create such a relationship lightly. See Thigpen, 363 S.W.2d at 253. Accordingly, while a fiduciary or confidential relationship may arise from the circumstances of a particular case, to impose such a relationship in a business transaction, the relationship must exist prior to, and apart from, the agreement made the basis of the suit. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 280 (Tex. 1995).

959 S.W.2d 171, 176-77 (Tex. 1997). In Consolidated Gas & Equip. Co. v. Thompson, the Texas Supreme Court previously acknowledged that in some circumstances business associates can owe informal fiduciary duties:

The usual cases of fiduciary relationship have been attorney-and-client, partners, close family relationships such as that of parent-and-child, and joint adventurers, particularly when there is an agreement among the joint adventurers to share financial gains and losses. This Court in Gaines v. Hamman, supra, as well as in Thigpen v. Locke, supra, recognized that a fiduciary relationship could arise outside of those relationships listed above when, over a long period of time, the parties had worked together for the joint acquisition and development of property previous to the particular agreement sought to be enforced.

405 S.W.2d 333, 336-37 (Tex. 1966).

So, an officer or director of a company should be able to hold multiple capacities, including an informal fiduciary duty, to a stockholder. The author believes that the Poe decision above should be narrowly construed to limit a director or officer from having informal fiduciary duties to a stockholder in the context of the operation of the business. It should not limit a director having an informal fiduciary duty to a stockholder in other contexts. For example, if a father steals money from a non-business joint account with his son, he should be held liable for a breach of fiduciary duties in the context of an informal confidential relationship (if one is proved) even though the father is a director of a company where the son owns stock.

Further, the Poe decision should not be read to hold that a stockholder disclaims other formal fiduciary duties from a director which may apply like attorney-client, trustee-beneficiary, executor-beneficiary, husband-wife, etc. See Adam v. Marcos, 620 S.W.3d 488 (Tex. App.—Houston March 18, 2021, pet. denied) (an attorney sued the client for breaching a partnership agreement, and the court of appeals held that the partnership agreement was presumptively invalid because the attorney owed fiduciary duties to the client when it was entered into). Once again, though the director has multiple capacities, his or her conduct should be judged by the capacity in which he or she is acting. If he or she is acting in multiple capacities, he or she should be judged in all relevant capacities. To the extent that the Texas Supreme Court holds otherwise, Poe is terrible precedent in Texas that may allow wrong-doers to breach fiduciary duties and get away with it.

David F. Johnson had his article entitled “Trustee Quandary: Criminal Activity By A Beneficiary With Or On Trust Property,” published in the Texas Tech Estate Planning and Community Property Law Journal in the spring of 2020. Continue Reading Trustee Quandary: Criminal Activity By A Beneficiary With Or On Trust Property

In Dillon v. King, one sister contested their father’s will and codicil and also asserted other claims against her sister. No. 05-20-00215-CV, 2022 Tex. App. LEXIS 2991 (Tex. App.—Dallas May 4, 2022, no pet. history). In 2010, the father executed a will leaving everything equally to his two daughters. Thereafter, he moved to Texas to be near the contestant. The contestant then accessed the father’s bank account. The father told Texas Adult Protective Services that he allowed her to use the account but that she no longer had access to it. Later, the father signed a new codicil, leaving everything to the applicant. After a bench trial, the trial judge admitted the will and codicil to probate and ordered the contestant to take nothing on her other claims. On appeal, the appellate court discussed many different issues. Continue Reading Court Affirmed Admitting A Codicil To Probate As The Testator Had Mental Capacity And Was Not Unduly Influenced And Discussed Expert Testimony Issues

It is not uncommon for an attorney to execute all or part of his or her client’s wishes, which may be in breach of a fiduciary duty owed by the client to a third party. The third party can certainly sue the client for breaching fiduciary duties. But can the third party also sue the attorney for participating in the client’s actions? Continue Reading Suing Attorneys In Texas For Participating in Fiduciary Breaches

In Ahlgren v. Ahlgren, the plaintiff asserted that the defendant breached fiduciary duties by taking assets held in trust for the plaintiff’s father. No. 13-22-00029-CV, 2022 Tex. App. LEXIS 2843 (Tex. App.—Corpus Christi April 25, 2022, no pet. history). The jury found for the plaintiff and awarded him fifty percent of certain assets. “It found that the value of Nim’s share of the assets at the time of Paco’s breach was as follows: (1) $9,074,390 4 in Bitcoin; (2) $1,900,000 for the Park City property; and (3) $375,000 for the Austin property. The jury was not asked to value Nim’s interest in gold. Finally, the jury found that Paco earned a $29,329,378 profit resulting from his breach.” Continue Reading Appellate Court Rules On Supersedeas Issues For Appeal Of Breach Of Fiduciary Duty Judgment

Author David F. Johnson recently presented his paper on “Undue Influence, Detecting Elder Abuse, and the Duty to Report Financial Exploitation” to the Austin Probate Bar Association in Austin, Texas, on May 20, 2022. Continue Reading Presentation: Undue Influence, Detecting Elder Abuse, and the Duty to Report Financial Exploitation

In this presentation David F. Johnson covers trust issues that arise in divorce disputes, such as spouses creating an irrevocable trust, fraud claims to void a trust, conflict of interest issues raised by the same attorney drafting both spouse’s estate/trust documents, characterization of trust assets and distributions as separate or community, settlor standing to complain about trust administration issues, trust construction issues, adoption-in and adoption-out issues, spouse/settlor liability for controlling a trust, capacity issues raised by spouses being involved as trustees and director/officer of a closely held business, spouses’ co-trustee management issues, and the new Texas trust code provisions dealing with the effect of dissolution of marriage on certain transfers in trusts.

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In Jones v. Jones, the decedent’s wife filed an application for probate of an attested will for her husband, and the decedent’s son from a previous marriage filed a petition contesting the will. No. 01-20-00073-CV, 2022 Tex. App. LEXIS 2019 (Tex. App.—Houston [1st Dist.] March 29, 2022, no pet. history). The trial court denied the application to probate the will, and the wife appealed. Continue Reading Court Holds That Initialing A Will Is Sufficient To Meet The Execution Requirement