David F. Johnson recently published his article “Fiduciary Compensation and Forfeiture in Texas” in the Texas Tech Estate Planning and Community Property Law Journal. This article addresses many of the interesting issues that arise in trustee compensation disputes. The article addresses a trustee’s authority to compensation under the trust document, statutes, and common law, and

David F. Johnson presented his paper on “Trustees’ Ability to Retain and Compensate Attorneys in Texas” to the Texas Bar Association’s Fiduciary Litigation Course on December 10, 2020. This presentation discussed a trustee’s authority to retain counsel, suggestions regarding engagement letters, attorney/client communication issues, inadvertent attorney/client relationships, co-trustee administration of trusts and its impact on

In Benge v. Thomas, a settlor created a trust and appointed her daughter, Missi, as the trustee. No. 13-18-00619-CV, 2020 Tex. App. LEXIS 6888 (Tex. App.—Corpus Christi August 27, 2020, no pet.). The trust owned an interest in a limited partnership that contained mineral interests. Missi’s daughter, Benge, was a beneficiary of the trust. Benge sued Missi for various claims of breach of fiduciary duty arising from the operation of the limited partnership and other issues. The trial court granted summary judgment for Missi, and Benge appealed.

The court of appeals first addressed Benge’s claim that Missi breached her fiduciary duty to the trust by allowing the limited partnership’ general partner to make objectionable transactions. Benge claimed that Missi breached her fiduciary duty in her capacity as trustee because she should have prevented the general partner from making the transactions. The court disagreed:

AFT Property as general partner had the authority to make these decisions. The evidence establishes as a matter of law that the 2012 Trust as a limited partner had no decision-making rights regarding AFT Minerals’ assets. Benge’s complaints all involve alleged damages to AFT Minerals and not to Benge herself. Thus, AFT Minerals would have had to bring these claims and not Missi in her capacity as trustee or Benge as a remainder beneficiary. See Hall v. Douglas, 380 S.W.3d 860, 873 (Tex. App.—Dallas 2012, no pet.) (“[C]laims for “a diminution in value of partnership interests or a share of partnership income” may be asserted only by the partnership itself.”); see also Adam v. Harris, 564 S.W.2d 152, 156-57 (Tex. App.—Houston [14th Dist.] 1978, writ ref’d n.r.e.) (“A clear line exists between actions of a trustee and those of an officer of a corporation owned wholly or in part by the trust, even where the same person ‘wears both hats.’”).


Continue Reading Court Addresses Claims Against A Trustee Arising From The Management Of A Limited Partnership Interest

In re Estate of Bryant, a couple set up three trusts for their three children, Bill, Leslie, and Jane. No. 07-18-00429-CV, 2020 Tex. App. LEXIS 2131 (Tex. App.—Amarillo March 11, 2020, no pet. history). After the couple had both passed away, their son Bill assumed the role of trustee of three trusts: Irrevocable Trust,

David F. Johnson presented his paper “Trustee Quandary: Criminal Activity By a Beneficiary  With or On Trust Property,” to the Tarrant County Probate Bar Association on March 5, 2020.  The presentation dealt with a trustee managing trust assets that are being used by a beneficiary in the course of criminal activity and addressed a trustee’s

In Marshall v. Ribosome L.P., a beneficiary of a trust sued a limited partnership of which the trustee was a partner. No. 01-18-00108-CV, 2019 Tex. App. LEXIS 3787 (Tex. App.—Houston [1st Dist.] May 9, 2019, no pet. history). The beneficiary asserted that the limited partnership aided and abetted a breach of fiduciary duty by

Thank you to everyone who joined us on September 18 for the webinar “Trustees’ Ability to Retain and Pay Attorneys in Texas.”  The recorded webinar link is available now.  If you are interested in joining our next complimentary webinar or presentation, please send your request to dfjohnson@winstead.com .

David F. Johnson, lead writer for