In In the Estate of Johnson, an applicant to be an independent administrator appealed a court’s decision to not appoint him due to his being unsuitable. No. 02-20-00133-CV, 2021 Tex. App. LEXIS 7138 (Tex. App.—Fort Worth August 26, 2021, no pet. history). The court of appeals first discussed the standard of review of orders finding a person unsuitable:

A probate court’s order finding a person is unsuitable to serve as executor is reviewed under an abuse-of-discretion standard. When applying an abuse-of-discretion standard, the normal sufficiency-of-the-evidence review is part of the abuse-of-discretion review and not an independent ground for reversal. The probate court abuses its discretion if its actions are unreasonable or arbitrary or without reference to any guiding rules or principles. “Under an abuse of discretion standard of review, we must make an independent inquiry of the entire record to determine if the trial court abused its discretion and are not limited to reviewing the sufficiency of the evidence to support the findings of fact made.”

Id. The court held that the person contesting the application has the burden to establish that the applicant is not suitable. The court noted that “Unsuitability is not defined in the Estates Code, and case law has not delineated any comprehensive, discrete explanation of the attributes that make someone unsuitable. ‘It would appear, therefore, that the legislature intended for the trial court to have wide latitude in determining who would be appropriate for the purpose of administering estates.’” Id.

The court then reviewed the record and held that there was sufficient evidence to support the trial court’s exercise of discretion in finding the applicant unsuitable:

The evidence showed that Sesin took property from a home in Arkansas and was questioned by the police concerning that property, which remained in the possession of Sesin at the time of trial. On direct, Sesin testified that he received a loan for his business from Eric in January or February. The text messages and the cross-examination actually showed that the loan was obtained at some point after March 19—less than a month before Eric’s death. Sesin’s testimony was that Eric was terminally ill at the time he requested the loan and that it was necessary for Eric to accompany him and Janelin to the bank to get the bank to release the funds. Sesin was administering morphine, when requested by Eric, during this same time period. The text messages also show that the siblings were all involved in facilitating the change in Eric’s power of attorney in a manner that would insure that Jane had no advance notice. On cross-examination, Sesin was also asked questions about the fiduciary duty of an executor that required “high trust and responsibility.” Jane’s counsel followed that with questions concerning how Sesin would treat interests Jane might have in two houses owned by Eric, Jane, or both. Under the will, Jane had no claim to the Fort Worth property. Sesin testified that when Jane first read the will that was later offered into probate, Jane asked Eric to leave her the house in Fort Worth. Sesin recounted that Eric “adamantly denied her and said that was for his children.” While the Georgia property was not specifically addressed in the will, a residual clause disposed of the residue of Eric’s estate equally between Jane and the three children.

We find that the probate court did not abuse its discretion in finding Sesin was not qualified to act as executor… The evidence showed there was substantial discord between Sesin and Jane, and the trial court made that specific finding. When a claim against the estate is controversial, the trial court is within its discretion to evaluate whether the claim against the estate presents such a conflict that the executor, who is also a claimant, is not suitable to act as an administrator. There is also some evidence to support the trial court’s finding of doubt as to Sesin’s trustworthiness due to inconsistencies in his testimony concerning the loan and due to the surreptitious manner in which he and his siblings operated to get Eric to make changes to important legal documents without Jane’s knowledge. Because this is some evidence that Sesin pursued his own self-interests over the interests of Jane, the trial court’s determination that Sesin was unfit to serve as executor was neither arbitrary, nor unreasonable, nor made without reference to guiding principles. We find that there is more than a scintilla of evidence that Sesin had a substantial conflict of interest with Jane and that considering all the evidence, the trial court’s finding was not clearly wrong or manifestly unjust.

Id. (internal citations omitted).

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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