Di Portanova v. Monroe
402 S.W.3d 711
Tex. App.2012Background
- Guardians filed a non-dispositive, administrative consolidation petition under Tex. Prop. Code § 112.054 to consolidate eight trusts for ward Ugo Di Portanova.
- Ugo is partially incapacitated and resides with his guardians, Annunziata and Umberto LaMatta, and estate guardian Richard Monroe; guardian ad litem is James Patrick Smith.
- Di Portanova siblings (Di Portanovas) claim Ugo is their heir-at-law and contest the consolidation as violating the Cullen wills’ in terrorem clause.
- Trustees of the Cullen trusts asked to resign; three trustees of the New Louisiana Trust did not resign and counterclaimed.
- Trial court consolidated eight trusts, allowed appointment of successor trustees by the court, and found no in terrorem violation.
- Appellate court affirmed, holding the in terrorem clause was not violated because the § 112.054 action was statutory, administrative, and did not thwart settlors’ intent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 112.054 consolidation trigger forfeiture via in terrorem clause? | Di Portanovas: consolidation violates in terrorem and forfeits Ugo’s interest. | Guardians: consolidation is under statutory right and not a will-based attack. | No forfeiture; not a violation. |
| Are administrative, nondispositive changes within the scope of the in terrorem clause? | Di Portanovas: any change triggers forfeiture. | Guardians: administrative changes compatible with statutory rights. | Administrative changes do not thwart settlors’ intent; no forfeiture. |
| Does the court have authority to appoint or change trustees in this administrative consolidation? | Di Portanovas: challenge to trustees’ appointment. | Guardians: court has authority to consolidate and appoint successors. | Court had authority; no abuse. |
| Did the consolidation violate the testators’ intent by altering trustee structure or compensation? | Di Portanovas: changes undermine intent. | Guardians: changes are administrative and necessary. | Not a violation of testators’ intent. |
Key Cases Cited
- McLendon v. McLendon, 862 S.W.2d 662 (Tex.App.-Dallas 1993) (limits forfeiture narrowly to thwarting testator intent)
- Estate of Newbill, 781 S.W.2d 727 (Tex.App.-Amarillo 1989) (fiduciary/credential actions not within in terrorem)
- Conte v. Conte, 56 S.W.3d 830 (Tex.App.-Houston [1st Dist.] 2001) (removal of trustee not per se in terrorem violation; protects statutory rights)
- In re Estate of Hamill, 866 S.W.2d 839 (Tex.App.-Amarillo 1993) (in terrorem construed narrowly; deter vexatious suits)
- Ferguson v. Ferguson, 111 S.W.3d 589 (Tex.App.-Fort Worth 2003) (purpose is to dissuade contests; no contest clauses enforceable)