In Many v. Ridgely, a decedent’s son and daughter were beneficiaries of her estate. No. 03-21-00520-CV, 2023 Tex. App. LEXIS 8189 (Tex. App.—Austin October 27, 2023, no pet. history). Six years after an initial accounting, the daughter, who was the executrix, filed an updated accounting, and the parties attended a hearing. After the hearing, the executrix provided her brother with additional information. The brother then filed a motion under Texas Estate Code Section 405.001 for a forensic accounting. After another hearing, the probate court approved the executrix’s accounting and denied the motion for a forensic accounting. The brother appealed.

The court first addressed the Estate Code’s provisions for accountings:

Section 404.001(a) of the Estates Code provides that an interested party may demand an accounting from the independent executor. See id. § 404.001(a). The statute then provides a list of what the independent executor must provide to the interested party within sixty days, including, among other things: estate property that has “come into” the executor’s possession and the disposition of that property; debts paid by the estate; and debts and expenses still owing to the estate. Id. Subsection (6) contains a catch-all provision, requiring the executor to show “other facts as may be necessary to a full and definite understanding of the exact condition of the estate.” Id. Section 405.001, on the other hand, allows an interested person to petition the probate court for accounting and distribution. See id. § 405.001(a). The probate court “may order an accounting to be made with the court by the independent executor at such time as the court considers proper.” Id. The statute requires the accounting to include “the information that the court considers necessary to determine whether any part of the estate should be distributed.” Id.

Id. The court noted that the executrix provided the probate court with the first accounting and then two more detailed accountings, which included over one hundred pages of invoices, receipts, canceled checks, and other documents. The court describes the brother’s objections and the explanations:

First, in regard to the April 8, 2021 accounting, Many complained about “unexplained contradictions” and “inconsistences” within Ridgely’s accounting of expenses, one of them being why Ridgely left the Decedent’s residence vacant for several years after Decedent’s death. In response, Ridgely provided documentation explaining that she attempted to lease the residence but had issues doing so because of the residence’s physical condition and her inability to find prospective tenants who could afford the requested rent. Relatedly, Many also questioned the utility expenses on the residence, claiming they were unusually high for a mostly vacant property. In response, Ridgely provided documentation of homeowner’s insurance, water usage reports, exterminator services, housekeeping services, and other items related to the upkeep of the residence. As independent executor, Ridgely had a duty to “take care of estate property as a prudent person would take care of that person’s own property, and keep [any buildings belonging to the estate] in good repair.” Id. § 351.101.

Despite these explanations, Many again objected to the accounting, specifically to Ridgely’s itemized debts. Once more, Ridgely, in a sworn affidavit and inventory, provided the probate court with a response to the accounting items challenged by Many. These explanatory documents included, among other items: receipts from payments of housekeeping services, property taxes, lawn services, neighborhood association dues, and funeral services. In all, the sworn inventory provided approximately thirty-six items of specific Estate expenses that Ridgely paid out of her own personal funds. Based on the documentary evidence and Ridgely’s sworn affidavit, we conclude the probate court did not abuse its discretion in approving Ridgely’s final accounting.

Id. The court then affirmed the denial of the request for a forensic accounting, stating: “Because we have determined the probate court did not abuse its discretion in approving Ridgely’s final accounting, we necessarily conclude that Many’s request for accounting and distribution under Section 405.001 was unnecessary and that the probate court did not err in denying it.” Id.

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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