Estate Administration

Fiduciary Duties

Avary v. Bank of America, 72 S.W.3d 779 (Tex. App.—Dallas 2002, pet. denied).


Decedent died as the result of a tractor accident triggering the filing of wrongful death and survival claims. Independent Executor, Guardian of the estates of Decedent’s minor children, and Defendants participated in a court-order mediation which resulted in a court-approved settlement. Guardian contended that Defendants made a settlement offer to Independent Executor which Independent Executor improperly rejected. Later, Independent Executor accepted a lower offer. Guardian claims Independent Executor’s rejection of the original offer was a breach of Independent Executor’s fiduciary duties. The lower court granted Independent Executor’s request for a summary judgment. Guardian appealed.

The appellate court reversed. The court held that Guardian had presented more than a scintilla of evidence to support the allegation that Independent Executor breached its fiduciary duties by failing to disclose material facts affecting the rights of the estate beneficiaries. Accordingly, summary judgment was improper.

Moral: An executor defending a breach of fiduciary duty claim brought by an estate beneficiary will have a difficult time obtaining a sustainable summary judgment.