Unanswered Questions in Wills and Trusts (And how to try and Answer Them)

Abstract

The genesis of this Article was to present a set of questions about estate and trust law for which there are no perfect answers under Texas law at present. As is often the case in these projects, the focus evolved a little bit, and a section has been added that presents various construction rules that might be of value to readers. Thus, the authors hope to shed light specifically on the questions presented and help practitioners approach other questions that may not have clear answers. The questions presented, which Parts III–IV of this Article pose, are as follows:

● The cloud cast by XTO: Does a trust beneficiary have the right to bring a derivative claim on behalf of the entire trust for damages or equitable relief against the corporation or individual serving as trustee? ● Who is entitled to demand trust accountings, and can that entitlement be limited? ● Can a testator exculpate an independent executor for breach of a duty imposed on him by statute or common law? ● What limits can be placed on the fiduciary duties of trust protectors? ● Can a party be estopped from contesting a will by accepting its benefits? ● What rights do charitable major disaster beneficiaries have to notice of trust activities?