In re Estate of Gober, 350 S.W.3d 597 (Tex. App.—Texarkana 2011, no pet.).
Testatrix named Son and Daughter as co-executors of her will. Son agreed not to serve and then convinced the trial court to deem Daughter unsuitable. The appellate court reversed.
The court began its analysis by examining Probate Code § 78(e) which disqualifies a person whom the court deems unsuitable. The statute does not provide guidance for how a court determines unsuitability and thus it is left to the court’s discretion. However, that discretion is not unbridled and can be reviewed for abuse. The court then examined the evidence and determined that the trial court acted in an arbitrary and unreasonable manner in finding that Daughter was unsuitable.
For example, the trial court relied on evidence that Daughter was living in Testatrix’s house and did not want to pay rent. The appellate court explained that title vested in Daughter as a co-beneficiary of the estate. As a co-tenant with her brother, she had the right to live in the house rent-free as long as she did not preclude her brother from using the house and there was no evidence that she denied him access.
The appellate court also rejected the trial court’s finding of unsuitability based on personality conflicts between Son and Daughter. Mere family discord is insufficient to disqualify a person from serving as an executor. In fact, the will provided that if one child refused to serve, the remaining child could serve alone and thus any conflict regarding the administration of the estate was, in effect, removed.
Moral: Personality conflicts alone are insufficient to deem a person unsuitable to serve as an executor. Likewise, merely because an executor is occupying property which was devised, in part, to the executor does not create a conflict of interest that makes the executor unsuitable.