pjc-family-2024-lib

PJC 250.7

A TTORNEY ’ S F EES

Answer: _______________ 5. For representation through oral argument and the completion of proceedings in the Supreme Court of Texas. Answer: _______________ COMMENT Standard for award of attorney’s fees. An independent executor or independent administrator who defends an action for his removal in good faith, whether successful or not, shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney’s fees, in the removal proceedings. Tex. Est. Code §§ 404.0037(a), 22.017. Whether to award attorney’s fees under section 404.0037(b) to the party seeking removal of the independent executor or independent administrator is solely within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion. Sammons v. Elder , 940 S.W.2d 276 (Tex. App.—Waco 1997, writ denied). Source. Question 1 in the foregoing submission is based on Tex. Est. Code §404.0037(a). The definition of “good faith” is derived from Ray v. McFarland , 97 S.W.3d 728, 730 (Tex. App.—Fort Worth 2003, no pet.), and Collins v. Smith , 53 S.W.3d 832, 842 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Although these cases use the disjunctive standard (intention or reasonable belief), the Committee has chosen the conjunctive standard (“and”) because the Committee believes that both the subjec tive standard of intention and the objective standard of reasonableness are appropriate to measure the conduct of a fiduciary. See Lee v. Lee , 47 S.W.3d 767, 795 (Tex. App.— Houston [14th Dist.] 2001, pet. denied) (executor could recover attorney’s fees in removal action despite breaches of fiduciary duty as long as he subjectively believed his defense was viable and his belief was reasonable under existing law). But note that 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. While Texas Estates Code section 404.0037(a) contains the phrase “whether successful or not,” the Committee has found no definitive case law on whether its inclusion in the question is appropriate. Guiding considerations. The Committee believes that principles applicable to fee-shifting cases generally also apply when attorney’s fees are sought from an estate. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP , 578 S.W.3d 469, 484 (Tex. 2019). When a claimant wishes to obtain attorney’s fees, the claimant must prove that the requested fees are both reasonable and necessary. Rohrmoos Venture , 578 S.W.3d at 489. Both of these elements are questions of fact to be determined by the fact finder

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