pjc-family-2024-lib

PJC 232.2

B REACH OF D UTY BY P ERSONAL R EPRESENTATIVE

in other contexts—for example, forfeiture and attorney’s fees—the disjunctive stan dard (“or”) is used. The Committee expresses no opinion on whether the definitions are appropriate for use in other contexts. Presumption of unfairness shifts burden of proof. When a fiduciary profits or benefits in any way from a transaction with the beneficiary, a presumption of unfair ness arises that shifts the burden of persuasion to the fiduciary or the party claiming the validity or benefits of the transaction to show that the transaction was fair and equitable to the beneficiary. Keck, Mahin & Cate v. National Union Fire Insurance Co. , 20 S.W.3d 692, 699 (Tex. 2000); Texas Bank & Trust Co. v. Moore , 595 S.W.2d 502, 508–09 (Tex. 1980); Archer , 390 S.W.2d at 739; Lesikar v. Rappeport , 33 S.W.3d 282, 298 (Tex. App.—Texarkana 2000, pet. denied). A presumption of unfairness also arises and the burden of proof shifts to the fidu ciary if the fiduciary places himself in a position in which his self-interest might con flict with his obligations as a fiduciary. Stephens County Museum, Inc. , 517 S.W.2d at 260–61 (fiduciary’s positions as attorney for donors and as director and officer of donee created presumption of unfairness in transactions). By definition, in any self dealing transaction the personal representative is in such a position. The presumption may be rebutted by the fiduciary. Stephens County Museum, Inc. , 517 S.W.2d at 261; see also Texas Bank & Trust Co. , 595 S.W.2d at 509. Normally, a rebuttable presumption shifts the burden of producing evidence to the party against whom it operates but does not shift the burden of persuasion to that party. General Motors Corp. v. Saenz , 873 S.W.2d 353, 359 (Tex. 1993). In fiduciary duty cases, how ever, the presumption of unfairness operates to shift both the burden of producing evi dence and the burden of persuasion to the fiduciary. Sorrell v. Elsey , 748 S.W.2d 584, 586 (Tex. App.—San Antonio 1988, writ denied); Miller , 700 S.W.2d at 945–46; Fil lion v. Troy , 656 S.W.2d 912, 914 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.); Cole v. Plummer , 559 S.W.2d 87, 89 (Tex. App.—Eastland 1977, writ ref’d n.r.e.); see also Peckham , 120 S.W.2d at 788 (issue of whether beneficiary of fiduciary relationship relied on fiduciary to perform his duties was immaterial). If there is no evidence rebutting the presumption, no breach of fiduciary duty ques tion is necessary. Texas Bank & Trust Co. , 595 S.W.2d at 509. Liability questions normally place the burden of proof on the plaintiff, who is required to obtain an affirmative finding. When the burden is shifted to the fiduciary, however, a “No” answer supports liability. If there is a dispute over whether the personal representative profited or benefited from the transaction or whether the fiduciary placed himself in a position in which his self-interest might conflict with his obligations as a fiduciary, a predicate jury question may be submitted to decide that issue, with the breach question conditioned on an affirmative answer. The burden of proof on the predicate issue is on the beneficiaries.

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