In In the Estate of Loftis, a husband and wife entered into a pre-marital agreement. No. 07-14-00135-CV, 2015 Tex. App. LEXIS 10940 (Tex. App.—Amarillo October 23, 2015, no pet. history).  After their marriage, they lived in a residence that was the husband’s separate property.  He then executed a will, created a revocable trust, and transferred the residence into the trust.  The wife was the initial trustee.  Later, the husband filed for divorce and removed the wife as trustee.  The husband died before the divorce became final.  The executor/trustee sued the wife for return of the residence and other assets, and the wife counterclaimed seeking to retain those assets.  The trial court granted summary judgment for the wife, determining that the agreement granted the wife a right to the residence and holding that the trustee had to convey the residence to her.  The executor/trustee appealed.  The executor/trustee argued that the house was no longer in the estate at the time of the husband’s death, and that the pre-marital agreement provided that upon the filing of a divorce petition that the residence would remain the husband’s separate property.  Another provision of the agreement stated that husband would provide that the wife would receive the residence and its contents after his death if they were not divorced.  The court held for the wife, and concluded that the pre-marital agreement did control the disposition of the residence as the marriage ended by death and not by divorce.  The executor/trustee also argued that another provision of the agreement provided that either party could manage that party’s separate property, including without limitation, the power to convey separate property “without taking into consideration any rights or interests of the other party.”  He argued that his provision allowed the husband to transfer the residence, his separate property, to the trust during the marriage.  The court disagreed and held that this provision had to be read in conjunction with the other provisions of the agreement.  Finally, the court sustained the executor/trustee’s issue that the trial court should not have ordered the trustee to convey the residence because the wife never raised a claim challenging the initial conveyance and seeking to void it.  The court held that the record did not support that remedy at this time and remanded for further proceedings.

Interesting Note: The court of appeals correctly reversed the trial court’s order requiring the trustee to convey the title of the residence to the wife. The wife’s claim would be against the estate for breach of the pre-marital agreement, which would be limited to monetary damages as the estate no longer owned the residence. A separate legal entity, the trust, owned the residence. The wife did not plead any claim that would void the initial conveyance. Interestingly, any equity claim for that type of relief may be difficult to sustain as the wife was the trustee when the residence was initially transferred to the trust, knew of the transfer, and apparently did not object to same.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of David Fowler Johnson David Fowler Johnson

[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…

[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