Co-Trustees Can Sue To Remove A Co-Trustee Due To Hostility
The fourth trustee (defendant) moved to dismiss the suit,. however, the court of appeals affirmed the lower court’s decision and denied the dismissal.
The court stated:
Sonia, Victor, and Javier sought to have Santiago removed as a co-trustee under section 113.082(a)(4) of the Texas Trust Code, which allows a trial court to remove a trustee based on a finding of “other cause for removal.” Tex. Prop. Code Ann. § 113.082(a)(4). “Ill will or hostility between a trustee and the beneficiaries of the trust, is, standing alone, insufficient grounds for removal of the trustee from office.” Akin v. Dahl, 661 S.W.2d 911, 913 (Tex. 1983). However, a trustee will be removed if his hostility or ill will affects his performance. Id. at 914. Furthermore, “[p]reservation of the trust and assurance that its purpose be served is of paramount importance in the law.” Id. For this reason, hostility that impedes the proper performance of the trust is grounds for removal, “especially if the trustee made the subject matter of the suit is at fault.” Bergman v. Bergman-Davison-Webster Charitable Tr., No. 07-02-0460-CV, 2004 Tex. App. LEXIS 1, 2004 WL 24968, at *1 (Tex. App.—Amarillo Jan. 2, 2004, no pet.) (mem. op.). Removal actions prevent a trustee “from engaging in further behavior that could potentially harm the trust.” Ditta v. Conte, 298 S.W.3d 187, 192 (Tex. 2009). “Any prior breaches or conflicts on the part of the trustee indicate that the trustee could repeat her behavior and harm the trust in the future.” Id. “At the very least, such prior conduct might lead a court to conclude that the special relationship of trust and confidence remains compromised.” Id.
See David Fowler Johnson, Co-Trustees Can Sue To Remove A Co-Trustee Due To Hostility, Winstead: Texas Fiduciary Litigation, July 25, 2020.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.