David F. Johnson has recently been named a Fellow with the American College of Trust and Estate Counsel (“ACTEC”). ACTEC is an organization of almost 2,400 trust and estate lawyers and law professors who have been elected by their peers in recognition of having made outstanding contributions to the practice of trust and estate law. ACTEC brings together top lawyers in the profession to maintain a high quality of trust and estate legal services through mutual education, to create and foster networking among those lawyers based on the highest order of trust and confidence, and to contribute to the improvement of the areas of law in which trust and estate lawyers practice. The nomination process requires the applicant to have contributed to the education of trust and estate attorneys over a long period of time though articles and speeches.

David F. Johnson co-presented “Breach of Fiduciary Duty Claims Against Trustees/Managers of Closely Held Businesses” with Kenneth J. Fair from Wright, Close & Barger LLP to the AFHE (Attorneys For Family-Held Enterprises) Fall Conference in Phoenix, Arizona, on November 29, 2021. This presentation discussed how and why trusts own closely held business interests, trustee’s duties regarding those interests, a officer and director’s duties and the business judgment rule, the conflict that can arise between those two capacities, attorney-client privilege issues, paying for attorneys when claims arise, and best-practice advice for attorneys who represent trustees in this situation.

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David F. Johnson presented his paper “Is There a Trustee Get Out of Jail Free Card? The Use of Exculpatory Clauses in Trust Documents in Texas” to the Dallas Bar Association Probate, Trusts, and Estates Section on October 26, 2021. This presentation discussed the different types of exculpatory clauses in trust documents, why they exist, the historical treatment of exculpatory clauses in Texas, Texas’s current statutory provisions that impact their enforcement, current precedent impacting the enforcement of such clauses, and procedural issues involved in litigating those clauses.

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In Moore v. Estate of Moore, a decedent’s wife claimed that she had an interest in an oil and gas lease formerly owned by her deceased husband. No. 07-20-00019-CV, 2021 Tex. App. LEXIS 6142 (Tex. App.—Amarillo July 30, 2021, no pet. history). The decedent’s children were the trustees of a trust that was the residuary beneficiary of the decedent’s will. If the decedent still owned the mineral interests at the time of his death, the trust would inherit that interest. After the decedent died, the wife and the trustees settled their dispute and entered into a settlement agreement that provided: “The Parties agree that each shall keep and own such real and personal property as they currently possess without any challenge of any other party.” Id. Later, the trustees sued the wife, alleging she breached her contractual duty to transfer the mineral interest to the trust, was liable under a theory of money had and received, and breached her fiduciary duties. After a jury trial, the trial court entered a judgment for the trustees, and held that the mineral interest belonged to the trust. The wife appealed. Continue Reading Court Holds That Trust Owned Mineral Interests And Not The Settlor’s Wife

In Peek v. Mayfield, a beneficiary sued a trustee for breach of fiduciary duty. No. 02-20-00107-CV, 2021 Tex. App. LEXIS 6080 (Tex. App.—Fort Worth July 29, 2021, no pet.). After a bench trial, the district court found that the trustee breached his fiduciary duties, removed him, and entered an order appointing a receiver and awarding other relief. The district’s court’s order did not require the receiver applicant to file a bond payable to the heir, nor did it indicate an appropriate amount for such a bond. The trustee appealed, and the court of appeals reversed:

Rule 695a provides that no receiver shall be appointed with authority to take charge of property until the party requesting the appointment has filed “a good and sufficient bond . . . payable to the defendant in the amount fixed by the court.” “The purpose of the bond is to ensure that the defendant can be reimbursed for any damages caused by the appointment of the receiver in the event that the receiver was wrongfully appointed.” The applicant’s bond is a prerequisite to the appointment of a receiver, and the trial court’s failure to require the bond necessitates reversal. “The filing of a bond by the receiver pursuant to Texas Civil Practice and Remedies Code section 64.023 will not satisfy this requirement.” In this case, the district court’s order does not require Linda to file a bond payable to Bruce, nor does it indicate an appropriate amount for such a bond. Bruce brought this deficiency to the district court’s attention in his motion to vacate appointment of the receiver, but the district court took no action to correct the error, and the record does not show that Linda posted such a bond. Therefore, the requirements of Rule 695a have not been met, and the receivership must be dissolved.

Id.

David Johnson presented his paper entitled “Fiduciary Litigation Update 2020-2021” to the Texas Bankers Association’s Wealth Management & Trust Conference on September 30, 2021. This presentation covered recent statutory changes and case law updates. He discussed extending the rule against perpetuities, de jure versus de facto status as trustee, modifications to trusts, trust construction, temporary injunctions against trustees, trustee authority to sell real estate, trust management of closely held businesses, co-trustee management, exculpatory clauses, acceptance-of-the-benefits doctrine, will reformation, and more.

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David F. Johnson presented his paper “Practical Issues Concerning Power of Attorney Transactions” to the Annual Legal Conference 2021 hosted by the Texas Bankers Association and the Southwest Association of Bank Counsel on October 7, 2021. This presentation addressed many of the common issues that financial institutions face when a customer’s agent under a power of attorney document wants to consummate a transaction. The issues discussed were the formation of a valid power of attorney document; termination of the agency; the agent’s powers; springing powers; a financial institution’s right to an agent’s certification, attorney opinion, English translation, doctor’s note, and the protections afforded a financial institution for requesting same; a financial institution’s duty to participate in the transaction and the ability to deny the transaction; elder abuse; and the duty to report financial exploitation.

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David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, discusses in this two part series many of the interesting and complex issues that arise from trustees making trust distributions to beneficiaries. The first part of the series discussed the general standards for trust distributions. The second part of this series will address other issues concerning distributions, such as the duty to disclose distributions, the duty of impartiality, the principal and income act, prudent investor act, trust provisions that allow the divesting of a beneficiary’s right to distributions, issues arising from a trustee also being a beneficiary, trustee discretion in distributing a trust upon termination, distributions to minors or incapacitated beneficiaries, loans from a trust as a distribution, spendthrift trust issues, co-trustee managing issues, exculpatory clauses, trustee’s defense of failure to know of facts relevant for distributions, trustee’s rights regarding overdistributions, and other relevant issues. Continue Reading FSIG Webinar – Distributions from Trusts in Texas: Part Two

In In the Interest of Riley Family Revocable Trust, a trustee filed suit for a declaration regarding who takes in the distribution of remaining trust property. No. 13-20-00084-CV 2021 Tex. App. LEXIS 5839 (Tex. App.—Corpus Christi July 22, 2021, no pet. history). In article two, section 2.01, the Trust states:

Upon the death of both Trustors, the primary residuary beneficiaries of this Trust are the children of the Trustors, BARBARA JEAN RILEY JONES, BRENDA JUNE RILEY BRAGG, STEPHEN MARCUS RILEY, and ELAINE RILEY, and their descendants… For purposes of this Trust Agreement, the terms “issue” or “descendant” shall not include any child adopted by a grandchild of the Trustors.

Continue Reading Court Reversed Trial Court On Interpretation Of Trust Regarding Per Stirpes Versus Per Capita Distributions

In Hotze v. In Mgmt., LLC, family members sued each other over control of a family business. No. 14-18-00995-CV, 2021 Tex. App. LEXIS 5821 (Tex. App.—Houston [14th Dist.] July 22, 2021, no pet. history). Three of the brothers ended up with greatly increased control of the company after debt the company owed to a partnership formed by the three brothers was partially converted into company stock. Id. Two other brothers and other associated parties filed two lawsuits, bringing both individual and derivative claims, which were consolidated for trial. “A key issue in the case was whether the promissory note between Troika and CECO authorized a partial conversion of debt for stock.” Id. The trial court concluded that it did, and instructed the jury to that effect. The two brothers appealed. Continue Reading Court Holds That Promissory Note Did Not Allow Partial Conversion To Equity