Lesikar v. Rappeport, 33 S.W.3d 282 (Tex. App.—Texarkana 2000, pet. denied).
Testator left his estate to Daughter One and Daughter Two, for life,
and named them as co-executors. After a factually complex lawsuit
involving estate property, the trial court determined that Daughter One
breached her fiduciary duties to Daughter Two for engaging in a wide
array of conduct relating to Testator’s estate. Daughter One appealed.
The court affirmed. The court discussed the duties Daughter One, as an
executrix, owed to Daughter Two, as a beneficiary. The duty includes
good faith, candor, and full disclosure respecting matters affecting
Daughter Two’s interests. Merely because the daughters were in a
strained relationship did not lessen Daughter One’s duties duty of full
and complete disclosure. Daughter One cannot gain personal benefit from
her position as co-executrix and cannot permit herself to be placed in
any position where her self-interest conflicts with her obligations as
executrix. The court meticulously examined the evidence and determined
that it was sufficient to sustain the trial court’s holding that
Daughter One breached her fiduciary duties. The court agreed that
Daughter Two had not waived her right to complain and that a
constructive trust remedy was appropriate.
Moral: A client should be leery of appointing co-executors. A testator
probably believes that co-executors will provide a built-in check and
balance protection for the administration of the estate. However, this
is not the case because Probate Code § 240 permits each co-executor to
act on his or her own except for the conveyance of real estate. This
moral is well-presented by concurring Justice Ben Z. Grant who
recommends amendment of this section to prevent "hydra-headed
administration."