In In re Estate of Boylan, a father died in 2006 and named his son Cooper as executor. No. 02-14-00170-CV, 2015 Tex. App. LEXIS 1427 (Tex. App.—Fort Worth February 12, 2015, no pet. hist.). His other son Lonnie opposed an application to probate the father’s will due to alleged testamentary incapacity. The will had a no-contest clause. After some discovery, Lonnie dismissed his opposition. Cooper believed that Lonnie’s action violated the no-contest clause and refused to distribute any estate property to him. After a bench trial, the court found that Lonnie did not violate the clause, but also held that Cooper did not violate his fiduciary duty by not distributing the estate at that time. Both parties appealed.

The court of appeals affirmed the finding that the no-contest clause did not apply due to the good-faith exception in Texas Estates Code section 254.005 – clauses will not be enforced where just cause existed for bringing the action and the action was brought in and maintained in good faith. However, the court reversed on breach of fiduciary duty. The court held that an executor owes the same duties as a trustee. The court held that a trustee owes a duty to exercise the judgment and care that persons of ordinary prudence, discretion, and intelligence exercise in the management of their own affairs.

Further, the court held that a trustee commits a breach of trust not only where he violates a duty in bad faith or negligently but also where he violates a duty because of a mistake. The court held that a breach based on a mistake may be found when a trustee interprets trust provisions as permitting certain action or inaction that a court later determines to be improper. Citing the Restatement, the court held that “A breach of trust may be found even though the trustee acted reasonably and in good faith, perhaps even in reliance on advice of counsel. Trustees can ordinarily be protected from this risk by obtaining instructions concerning uncertainties of law or interpretation.” Id. (citing Restatement (Third) of Trusts § 93 cmt. c (2012)).

The court held that “Cooper’s mistake was one of law, and the trial court correctly concluded that Cooper’s failure to give Lonnie his inheritance was not excused by the language of the will. The defense of good faith was not available to him.” The court noted that Cooper did not seek judicial guidance or seek advice of counsel. See Restatement (Third) of Trusts § 77 cmt. b(2), c (“Taking the advice of legal counsel on such matters evidences prudence on the part of the trustee. . . . Lack of awareness or understanding of the terms of the trust normally will not excuse a trustee from liability.”). Cooper was personally liable for the breach as he benefited from it.

INTERESTING NOTE: This case states that a trustee is protected from liability if he seeks instructions on legal issues. But the opinion means that a trustee is protected by seeking instructions from courts – not just hiring attorneys. Rather, a trustee may use the advice of counsel solely as a “factor” in determining whether the trustee acted reasonably. Moreover, trustees should be aware that raising an advice of counsel defense may well waive the attorney/client privilege on those issues made the basis of the defense.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law