mary-t-ard-v-edward-r-hudson-jr-and-william-a-hudson-ii ( 2015 )


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  •                       COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-13-00198-CV
    MARY T. ARD                                       APPELLANT
    V.
    EDWARD R. HUDSON, JR. AND                         APPELLEES
    WILLIAM A. HUDSON, II,
    INDIVIDUALLY AND AS CO-
    EXECUTORS OF THE ESTATE OF
    JOSEPHINE T. HUDSON,
    DECEASED, AND AS CO-
    TRUSTEES OF THE EDWARD R.
    HUDSON TRUST NO. ONE, FROST
    NATIONAL BANK, JOSEPHINE
    TERRELL ARD RENSCH, AND E.
    RANDALL HUDSON III
    ----------
    FROM PROBATE COURT NO. 1 OF TARRANT COUNTY
    TRIAL COURT NO. 2002-1286-A-1
    ----------
    MEMORANDUM OPINION 1
    ----------
    1
    See Tex. R. App. P. 47.4.
    This is a probate case involving the children and grandchildren of Edward
    Hudson Sr. and Josephine Hudson. Appellant is their daughter Mary T. Ard.
    Sons Edward Jr. and William Hudson II (Bill); grandchildren E. Randall Hudson
    (Randall), Edward Jr.’s son; and Josephine Terrell Ard (Terrell), Mary’s daughter
    (collectively, the Hudsons); and Frost Bank, a trustee, are Appellees. Frost Bank
    did not file an appellee’s brief. Terrell joined in the brief filed by her uncles
    Edward Jr. and Bill and cousin Randall.
    The immediate dispute in this decades-long feud between brothers and
    their sister and brother-in-law, Julian Ard, revolves around an in terrorem clause,
    also called a forfeiture clause, in Josephine’s will. We hold that as a matter of
    law, Mary did not trigger the forfeiture clause or the condition precedent therein
    by suing the Hudsons or by seeking temporary and permanent injunctive relief or
    the appointment of a receiver within that suit, has not forfeited any benefits under
    Josephine’s will, and has not lost standing under the forfeiture clause or condition
    precedent to pursue her claims.       Mary does not challenge the trial court’s
    conclusion that the Hudsons did not trigger the forfeiture clause. We therefore
    reverse and remand in part.
    I. Statement of Facts
    A. Background
    When Edward Sr. died in 1972, his will disposed of his and Josephine’s
    community estate (including their interest in three mineral trusts) through four
    trusts—a marital trust for Josephine during her lifetime (Trust 1) and a trust for
    2
    each of their children (Trusts 2, 3, and 4). Trust 1 was funded with half of the
    community estate. The other half of the community estate funded Trusts 2, 3,
    and 4 for the children. Trust 4 was for the benefit of Mary. The three children
    were the original co-trustees of the four trusts.
    Edward Sr.’s will stated,
    It is contemplated that several trusts shall result under this will
    but that these trusts, the major assets of which will be oil and gas
    royalty, mineral, and leasehold interests, shall constitute separate
    entities administered, however, as far as possible as a single entity
    for the convenience and economy of the Trustees and beneficiaries
    alike.
    Edward Sr.’s will gave Josephine the power of appointment to direct the
    distribution of the assets of Trust 1 upon her death.
    From the time the trusts were established until 1988, all four beneficiaries
    took distribution from the trusts, but in differing amounts.       The parties offer
    different versions about how the variances occurred. The Hudsons contend that
    by 1988, because all the children had received more in distributions than
    Josephine, the family members therefore entered into a settlement agreement to
    settle the imbalance. They point to a letter that Edward Jr. wrote in December
    1988 to his mother and siblings.       In that letter, Edward Jr. stated that each
    beneficiary had withdrawn “funds from time to time as needed,” and the result
    was “a constant imbalance on the books.” In the letter, Edward Jr. rejected a
    proposal by Mary’s attorneys and offered to make certain payments to Bill and
    Mary to settle the discrepancies. (He had withdrawn the largest amount.)
    3
    Mary points to an April 1988 letter written by Bill to her attorneys. In that
    letter, Bill painted a different picture. He stated that the first distributions to the
    trusts set up under Edward Sr.’s will were $2,493.66 to Josephine’s trust, $5,000
    to Bill’s trust, $5,000 to Mary’s trust, and $10,000 to Edward Jr.’s trust, and that
    this distribution pattern continued until he confronted Edward Jr. about it in 1982.
    Bill said that Edward Jr.’s actions showed “no apparent attempt” to follow the
    terms of their father’s will. In the letter, Bill stated that neither Josephine nor
    Mary wished to take any action against Edward Jr. at that time.
    The letter detailed various discrepancies and problems with Edward Jr.’s
    handling of the family business and trust property. Bill stated in the letter that
    due to Edward Jr.’s actions, “[i]t w[ould] be over [Bill’s] dead body before Eddie
    [would] get[] into the position [to have] any control over any Trust income. [Bill
    thought Edward Jr.] ha[d] amply demonstrated a total lack of any reasonable
    ability to exercise control over the Trust[‘]s money.”
    In 1988, the trusts were allegedly equalized, although Mary doubted
    whether the shortfall resulting to her trust by Edward Jr.’s excess withdrawals
    was fully repaid, and Josephine was appointed as an additional co-trustee. Four
    years later, pursuant to a family agreement, Mary resigned as co-trustee of
    Trusts 1, 2, and 3, and her mother and brothers resigned as co-trustees of Trust
    4, leaving Mary as its sole trustee.
    Josephine died in 2002.          In her will, she exercised the power of
    appointment in Trust 1 so that at her death, Trust 1 would terminate and its
    4
    assets would become part of her estate. Edward Jr. and Bill were named co-
    executors of Josephine’s estate. At the time of these trial court proceedings
    more than ten years after Josephine’s death, they had not completed the winding
    up of Trust 1.
    Josephine’s will originally contained a clause to disinherit any beneficiary
    who instituted or joined litigation (except as a party defendant) “for anything that
    has happened or been omitted prior to the date of this Will regarding [Trust 1] . . .
    (regardless of whether or not such proceeding is instituted in good faith and with
    probable cause).” Josephine removed that clause by codicil in 1997. Unlike her
    husband’s will, Josephine’s did not contain a clause promoting the commingling
    of assets.
    But her final will did include a forfeiture clause, and that clause is at the
    center of this dispute. The clause states:
    7.1 Forfeiture. If any beneficiary hereunder shall contest
    the probate or validity of this Will or any provision thereof, or shall
    institute or join in (except as a party defendant) any proceeding to
    contest the validity of this Will or to prevent any provision thereof
    from being carried out in accordance with its terms (regardless of
    whether or not such proceedings are instituted in good faith and with
    probable cause), then all benefits provided for such beneficiary are
    revoked and such benefits shall pass to the non-contesting residuary
    beneficiaries of this Will in the proportion that the share of each such
    non-contesting residuary beneficiary bears to the aggregate of the
    effective (non-contesting) shares of the residuary. . . . Each benefit
    conferred herein is made on the condition precedent that the
    beneficiary shall accept and agree·to all provisions of this Will.
    Josephine’s will devised her residual estate in three equal shares. One-
    third went to Bill outright, one-third went to Edward Jr. outright, and the final third
    5
    was devised to Mary in trust (Trust 5) during her lifetime, with a remainder to
    Terrell.   In her will, Josephine named Overton Bank and Trust (now Frost
    National Bank) the trustee of Trust 5, but Trust 5 was not funded by the time of
    summary judgment proceedings more than ten years after Josephine’s death.
    The parties agree that Frost Bank declined to accept “any of the assets
    constituting the one third of the Estate” to fund Trust 5 until resolution of the suit
    that Mary had brought. Josephine’s will was admitted to probate in May 2002,
    the month following her death, but Mary did not file suit until February 2005. It is
    not clear why Trust 5 was not funded before Mary filed suit.
    After Josephine’s death, Mary requested, but did not receive, multiple
    accountings from her brothers, and they tried but failed to obtain a guardianship
    over her person and estate, charging the legal fees involved to her share of the
    estate, and paying the estate back only after her agent discovered it.
    B. Litigation
    In 2005, Mary sued her brothers in probate court, both individually and in
    their capacities as co-executors and co-trustees, alleging claims for breach of
    fiduciary duty. By the summer of 2010, Randall and Terrell were added to the
    litigation. Mary alleged defects in the estate accounting and complained that the
    Hudsons had failed to provide her sufficient information, mismanaged estate
    assets, and engaged in self-dealing transactions.       She pled that she did not
    contest Josephine’s will or seek to invalidate any provision of it, “but rather
    [sought] enforcement of her rights under [Josephine’s] Will and which belong to
    6
    her under state law.” Mary also sought a declaratory judgment that her lawsuit
    would not trigger the forfeiture clause.
    In a separate suit in district court, Mary sought to compel an accounting of
    Trust 1. This lawsuit was transferred and consolidated with the pending probate
    court suit. Mary moved for injunctive relief, alleging that the Hudsons had failed
    to distribute the assets from Trust 1 to the beneficiaries and were instead using
    estate assets to drill high-risk, speculative oil and gas wells. She asked the court
    to restrain the Hudsons from using additional estate funds to drill speculative
    high-risk oil and gas wells, among other activities. She sought to have thirteen
    actions enjoined, including:
    ...;
    6. Agreeing to participate in the drilling of any new wells;
    7. Agreeing to participate in the reworking, recompleting, deepening,
    or sidetracking of any well that commits the Estate; provided,
    however, that in case of explosion, fire, flood or other sudden
    emergency, [the Hudsons] may take such steps and incur such
    expenses as in its opinion are required to deal with the emergency
    to safeguard life and property, shall report the emergency to the
    Court within 48 hours;
    8. Selling, leasing, exchanging, or transferring any assets or
    interests of the Estate;
    9. Acquiring or purchasing any interest in any real or personal
    property;
    10. Taking any action other than action necessary to wind up the
    Estate administration;
    11. Commingling assets of the Estate with assets of the
    Respondents or any affiliate of Respondents;
    7
    12. Expending Estate funds to pay attorney’s fees and costs
    incurred by Respondents, or their affiliates in this or any other
    proceeding; and
    13. Expending Estate funds to reimburse or pay any amounts
    alleged to be due to Respondents or their affiliates.
    The probate court held a hearing on the request for injunctive relief in
    December 2005 but continued the hearing without a ruling.
    In September 2006, Mary filed an amended motion for temporary injunctive
    relief. Like her previous motion, this motion was made subject to her request for
    a declaratory judgment construing the forfeiture clause in Josephine’s will. She
    alleged that rather than winding up Trust 1 upon Josephine’s death, Edward Jr.
    and Bill “bought and sold Trust assets, drilled new wells and committed the Trust
    to additional contractual liabilities and duties without making any disclosures to
    the beneficiaries of the Trust and without the informed consent of the
    Beneficiaries.” She asked for the same thirteen actions to be enjoined as in her
    previous motion.
    Based on Mary’s motion for temporary injunction, the Hudsons moved for
    summary judgment on the ground that she had violated the forfeiture clause and
    therefore had forfeited her inheritance. In December 2006, the trial court denied
    the motion after a hearing.
    Mary then amended her pleadings to add more alleged breaches of
    fiduciary duty by the Hudsons, including that they had commingled estate funds
    8
    with their personal funds and funds of entities they controlled. She sought to
    remove the Hudsons as executors.
    A court-appointed independent auditor filed his report regarding the
    Hudsons and their management of Trust 1 and the estate assets. The parties
    rely on different portions of this report. Edward Jr. and Bill’s brief focuses on the
    part of the report relating to one of the nine actions the auditor was ordered to
    perform. Specifically, the report states that in reconciling monthly revenues and
    monthly expenses with the annual summary of joint interest billing statements
    from 2002 through 2009, the court-appointed auditor found “[t]he monthly
    reconciliations of revenues and severance taxes properly agreed with the annual
    summaries with no exceptions.” Mary, on the other hand, emphasizes in her
    reply brief the auditor’s conclusion:
    We were not engaged to and did not conduct an examination, the
    objective of which would be the expression of an opinion regarding
    the transactions and accounts noted above. Accordingly, we do not
    express such an opinion. Had we performed additional procedures,
    other matters might have come to our attention that would have
    been reported to you.
    In December 2011, the Hudsons filed a second partial motion for summary
    judgment based on Mary’s alleged violations of the forfeiture clause, combining
    traditional and no-evidence grounds. The Hudsons contended that they were
    entitled to summary judgment as a matter of law on their requests for declaratory
    relief and affirmative defenses. Their four grounds for summary judgment, which
    they characterize as “specific” and “independent” are:
    9
    1.    Mary violated the forfeiture clause by seeking injunctive relief to
    prevent her brothers from administering the estate, particularly the
    exploration and production of oil and gas properties, in accordance
    with Josephine’s wishes;
    2.    As a result of Mary’s violation of the forfeiture clause, she
    automatically relinquished any benefits under Josephine’s will as of
    the date Mary filed her request for injunctive relief, and Mary lost all
    standing as a beneficiary, with all benefits instead flowing to
    noncontesting beneficiaries;
    3.    There is no evidence that Mary acted with good faith when she
    sought injunctive relief;
    4.    Alternatively, Mary’s actions in violation of the forfeiture clause
    resulted in a failure of the “condition precedent that the beneficiary
    shall accept and agree to all provisions of this Will.”
    The Hudsons further moved for summary judgment on Mary’s declaratory
    judgment claim that the Hudsons had violated the forfeiture clause. (Mary does
    not raise an appellate challenge to the trial court’s summary judgment for the
    Hudsons on this claim.)
    In March 2012, after taking the Hudsons’ depositions, Mary filed five
    motions (also known as the “New Motions”) alleging additional fiduciary duty
    breaches by the Hudsons and seeking (1) the appointment of a receiver to
    administer Josephine’s estate pending the outcome of the litigation; (2) a
    temporary successor trustee to administer Trust 1 pending the outcome of
    litigation; (3) to prevent the Hudsons from paying from the estate their interim
    attorney’s fees to defend the breach of fiduciary duty lawsuit; (4) to prevent the
    Hudsons from continuing to pay any of Randall or Terrell’s attorney’s fees from
    the estate or Trust 1; and (5) an accounting.
    10
    The Hudsons then supplemented their second summary judgment motion
    based on the forfeiture clause to allege that Mary’s motions further violated the
    forfeiture clause. The Hudsons alleged in that supplemental motion that Mary’s
    claims related to Josephine’s estate and Trust 1 fail as a matter of law because
    1.     Mary lost all standing as a beneficiary of the will.
    2.     Mary violated the forfeiture clause by seeking injunctive relief
    to prevent her brothers from administering the estate, particularly the
    exploration and production of oil and gas properties, in accordance
    with Josephine’s testamentary wishes. This includes but is not
    limited to precluding continued investment in new wells on leases in
    which the estate has an interest.
    3.     Mary also violated the forfeiture clause with her new motions
    by seeking to suspend her brothers as co-trustees of Trust 1 and to
    greatly limit what the Temporary Successor Trustee is allowed to do,
    as well as seeking a receiver over the Estate, in direct violation of
    Josephine’s clear testamentary intent.
    4.     As a result of her violations of the forfeiture clause, Mary
    automatically relinquished any benefits under the will, including
    those related to Trust 1 assets, when she filed her request for
    injunctive relief and lost all standing as a beneficiary of the will.
    5.     There is no evidence of good faith or probable cause when
    she sought injunctive relief to prevent Josephine’s will from being
    carried out according to its terms.
    The trial court held a hearing on the Hudsons’ second partial motion for
    summary judgment as supplemented on May 16, 2012. On October 12, 2012,
    the trial court issued a letter to the parties stating that because it believed that its
    ruling would “either [be] dispositive of or obviate[] any remaining pending
    motions,” the court was “declining to rule further at th[at] time.”
    11
    A year after the summary judgment hearing, on May 6, 2013, the trial court
    signed an order granting the Hudson’s live forfeiture motion for partial summary
    judgment based on the forfeiture clause “in full.” The trial court reasoned that the
    effect of Mary’s October 31, 2005 filing of suit with requests for temporary
    restraining order and temporary and permanent injunctive relief, subject to a
    petition for declaratory relief, and her March 12, 2012 filing seeking appointment
    of a receiver, subject to no petition for declaratory relief, were intended “to
    prevent provisions of the will from being carried out according to its terms.” The
    trial court concluded that the March 12, 2012 filing violated the forfeiture clause
    and that Mary thereby forfeited her rights under the will.
    The trial court held (1) that the Hudsons had established as a matter of law
    their affirmative defense that Mary’s actions violated the forfeiture clause and
    their counterclaim for declaratory judgment; (2) that the benefits forfeited by Mary
    as a result of her violation of the forfeiture clause automatically passed and shall
    pass to her brothers and the Trustee of Trust 5, of which Mary is no longer a
    beneficiary and Terrell is now the primary beneficiary; (3) that Mary’s actions
    resulted in the failure of the will’s “condition precedent” to any right of inheritance
    for her; and (4) that all her claims except attorneys’ fees claims, which were
    severed in the same order, were dismissed with prejudice. The order does not
    mention standing.
    12
    The order’s severance of Mary’s and the Hudsons’ claims for attorney’s
    fees made the partial summary judgment final. On the Hudsons’ motion, the
    probate court signed a modified order to award costs against Mary.
    Mary filed a motion for new trial, which was not expressly ruled on by the
    probate court. Mary timely appealed.
    II. Analysis
    A. The Parties’ Issues
    In her six issues, Mary contends that (1) a beneficiary has the inherent
    right to sue her executors and trustees for breaches of their fiduciary duties
    without triggering a forfeiture clause; (2) because forfeiture clauses are strictly
    construed, a beneficiary does not forfeit her inheritance when the forfeiture
    clause does not expressly prohibit her actions; (3) a beneficiary does not forfeit
    her inheritance when her actions seek to enforce rather than vary the terms of
    the will; (4) a beneficiary does not violate a forfeiture clause when she sues
    executors and trustees in good faith and with probable cause; (5) a beneficiary
    satisfies the conditions precedent to obtain her inheritance when she expressly
    accepts the provisions of a will; and (6) the probate court erred by granting the
    Hudsons’ motion for partial summary judgment.
    In their six “reply and cross points,” the Hudsons contend that (1) the
    probate court properly granted summary judgment; (2) Mary’s repeated attempts
    to prevent her brothers from drilling wells on the estate’s oil and gas properties
    violated the no-interference clause; (3) the no-interference clause should be
    13
    enforced in light of Mary’s attempts to interfere with the co-executor powers
    granted to her brothers in the will; (4) Josephine’s declaration in her will that
    “good faith and probable cause” would not excuse interference should be
    honored; (5) alternatively, Mary’s efforts to interfere with her brothers lack good
    faith and probable cause as a matter of law; and (6) Mary’s refusal to accept the
    will’s express grant to her brothers of unfettered authority to participate in oil and
    gas ventures on behalf of the estate violated the condition precedent that
    beneficiaries accept and agree to all provisions of the will.
    B. Standard of Review
    In a traditional summary judgment case, the issue on appeal is whether the
    movant met the summary judgment burden by establishing that no genuine issue
    of material fact exists and that the movant is entitled to judgment as a matter of
    law. 2 We review a summary judgment de novo. 3
    We take as true all evidence favorable to the nonmovant, and we indulge
    every reasonable inference and resolve any doubts in the nonmovant’s favor. 4
    We consider the evidence presented in the light most favorable to the
    nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
    2
    Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v.
    Fielding, 
    289 S.W.3d 844
    , 848 (Tex. 2009).
    3
    Travelers Ins. Co. v. Joachim, 
    315 S.W.3d 860
    , 862 (Tex. 2010).
    4
    20801, Inc. v. Parker, 
    249 S.W.3d 392
    , 399 (Tex. 2008); Provident Life &
    Accident Ins. Co. v. Knott, 
    128 S.W.3d 211
    , 215 (Tex. 2003).
    14
    could and disregarding evidence contrary to the nonmovant unless reasonable
    jurors could not. 5 We must consider whether reasonable and fair-minded jurors
    could differ in their conclusions in light of all of the evidence presented. 6   If
    uncontroverted evidence is from an interested witness, it does nothing more than
    raise a fact issue unless it is clear, positive and direct, otherwise credible and
    free from contradictions and inconsistencies, and could have been readily
    controverted. 7
    The summary judgment will be affirmed only if the record establishes that
    the movant has conclusively proved all essential elements of the movant’s cause
    of action or defense as a matter of law. 8 A defendant is entitled to summary
    judgment on an affirmative defense if the defendant conclusively proves all the
    elements of the affirmative defense. 9 To accomplish this, the defendant-movant
    5
    Mann 
    Frankfort, 289 S.W.3d at 848
    .
    6
    See Wal-Mart Stores, Inc. v. Spates, 
    186 S.W.3d 566
    , 568 (Tex. 2006);
    City of Keller v. Wilson, 
    168 S.W.3d 802
    , 822–24 (Tex. 2005).
    7
    Tex. R. Civ. P. 166a(c); Morrison v. Christie, 
    266 S.W.3d 89
    , 92 (Tex.
    App.—Fort Worth 2008, no pet.).
    8
    City of Houston v. Clear Creek Basin Auth., 
    589 S.W.2d 671
    , 678 (Tex.
    1979).
    9
    Chau v. Riddle, 
    254 S.W.3d 453
    , 455 (Tex. 2008); see Tex. R. Civ. P.
    166a(b), (c).
    15
    must present summary judgment evidence that establishes each element of the
    affirmative defense as a matter of law. 10
    A defendant who conclusively negates at least one essential element of a
    cause of action is entitled to summary judgment on that claim. 11        Once the
    defendant produces sufficient evidence to establish the right to summary
    judgment, the burden shifts to the plaintiff to come forward with competent
    controverting evidence that raises a fact issue. 12
    Questions of law are appropriate matters for summary judgment. 13
    C. As a Matter of Law, Mary Did Not Trigger the Forfeiture Clause
    In her first issue, Mary contends that claims alleging breach of fiduciary
    duty do not invoke an analysis of forfeiture clauses because a beneficiary has an
    inherent right to bring such claims.         Thus, she challenges the trial court’s
    conclusion that the Hudsons proved their affirmative defense that she triggered
    the forfeiture clause as a matter of law. The Hudsons agree that “seeking an
    accounting or filing claims for fiduciary-duty breaches [did not] trigger[] the No-
    Interference Clause.” Instead, they argue here and argued in the trial court in
    10
    
    Chau, 254 S.W.3d at 455
    ; Ryland Group, Inc. v. Hood, 
    924 S.W.2d 120
    ,
    121 (Tex. 1996).
    11
    Frost Nat’l Bank v. Fernandez, 
    315 S.W.3d 494
    , 508 (Tex. 2010).
    12
    Van v. Pena, 
    990 S.W.2d 751
    , 753 (Tex. 1999).
    13
    Rhone-Poulenc, Inc. v. Steel, 
    997 S.W.2d 217
    , 222 (Tex. 1999).
    16
    their “Second Motion for Partial Summary Judgment” and supplement that Mary’s
    requests for temporary and permanent injunctive relief and her motions to
    suspend her brothers as co-trustees and to appoint a receiver triggered the
    clause. But Mary contends that her requests for injunctive relief and motions to
    suspend her brothers as co-trustees and to appoint a receiver “were procedural
    vehicles filed in furtherance of the underlying breach of fiduciary duty lawsuits,
    filed to preserve the status quo pending final resolution,” citing Butnaru v. Ford
    Motor Co, 14 and that they likewise did not trigger the clause. We agree.
    Whether a forfeiture clause is triggered is a question of law. 15 A breach of
    a forfeiture clause will be found only when the beneficiary’s or devisee’s actions
    fall clearly within the express terms of the clause. 16
    As we recently explained,
    In terrorem [or forfeiture] clauses are intended to dissuade
    beneficiaries under a will or trust from filing vexatious litigation,
    particularly as among family members, that might thwart the intent of
    the grantor by making the gifts under the instrument conditional on
    the beneficiaries not challenging the validity of the instrument. In
    terrorem clauses are strictly construed to avoid forfeiture when
    14
    
    84 S.W.3d 198
    , 204 (Tex. 2002) (“A temporary injunction’s purpose is to
    preserve the status quo of the litigation’s subject matter pending a trial on the
    merits.”).
    15
    In re Estate of Cole, No. 02-13-00417-CV, 
    2015 WL 392230
    , at *8 (Tex.
    App.—Fort Worth Jan. 29, 2015, no pet.) (mem. op.); Ferguson v. Ferguson, 
    111 S.W.3d 589
    , 598–99 (Tex. App.—Fort Worth 2003, pet. denied).
    16
    Badouh v. Hale, 
    22 S.W.3d 392
    , 397 (Tex. 2000); Cole, 
    2015 WL 392230
    , at *8; 
    Ferguson, 111 S.W.3d at 599
    .
    17
    possible. Thus, courts have enforced in terrorem clauses only when
    the intention of a suit is to thwart the grantor’s intention. 17
    “An action to remove a trustee, like an action to remove an executor, is not
    an effort to vary the grantor’s intent.” 18 We join our sister courts in holding that a
    beneficiary has an inherent right to challenge the actions of a fiduciary and does
    not trigger a forfeiture clause by doing so. 19 But that inherent right would be
    worthless absent the beneficiary’s corresponding inherent right to seek protection
    during such an ongoing challenge of what is left of his or her share of the estate
    or trust assets, and any income thereon, that the testator or grantor, as the case
    may be, intended the beneficiary to have.          We therefore also hold that a
    beneficiary exercising his or her inherent right to challenge a fiduciary may seek
    injunctive and other relief, including the appointment of a receiver, from the trial
    court to protect what the testator or grantor intended the beneficiary to have
    without triggering the forfeiture clause.
    17
    In re Estate of Boylan, No. 02-14-00170-CV, 
    2015 WL 598531
    , at *2
    (Tex. App.—Fort Worth Feb. 12, 2015, no pet.) (mem. op.) (citations and internal
    quotation marks omitted).
    18
    Conte v. Conte, 
    56 S.W.3d 830
    , 833 (Tex. App.—Houston [1st Dist.]
    2001, no pet.).
    19
    See, e.g., Lesikar v. Moon, 
    237 S.W.3d 361
    , 370–71 (Tex. App.—
    Houston [14th Dist.] 2007, pet. denied); McLendon v. McLendon, 
    862 S.W.2d 662
    , 679 (Tex. App.—Dallas 1993, writ denied), disapproved on other grounds,
    Dallas Mkt. Ctr. Dev. Co. v. Liedeker, 
    958 S.W.2d 382
    (Tex. 1997), overruled on
    other grounds, Torrington Co. v. Stutzman, 
    46 S.W.3d 829
    , 840 & n.9 (Tex.
    2001).
    18
    Consequently, we hold that Mary did not trigger the forfeiture clause by
    seeking injunctive relief and a receiver during the pendency of her lawsuit against
    the Hudsons. We therefore hold that the Hudsons failed to prove as a matter of
    law that Mary triggered the forfeiture clause. To the extent that the trial court
    granted summary judgment based on its contrary conclusion that the Hudsons
    proved as a matter of law that Mary triggered the clause, the summary judgment
    was in error. We sustain Mary’s first issue and reject the Hudsons’ second and
    third “[r]eply and [c]ross points.” We do not reach Mary’s second, third, and
    fourth issues or the Hudsons’ fourth and fifth “[r]eply and [c]ross points” because
    those issues and points presuppose that the forfeiture clause was triggered.
    D. The Condition Precedent Likewise Fails as a Matter of Law.
    The last line of the forfeiture provision in Josephine’s will provides, “Each
    benefit conferred herein is made on the condition precedent that the beneficiary
    shall accept and agree to all provisions of this Will.” In her fifth issue, Mary
    asserts that a beneficiary satisfies the conditions precedent to obtain her
    inheritance when she expressly accepts the provisions of a will. She contends
    that because she did not violate the forfeiture clause, she likewise did not violate
    the condition precedent language, incorporating all her arguments regarding the
    forfeiture clause.   She further contends that she sought to enforce the will
    through her litigation and expressly agreed to its terms, thereby implicitly
    concluding that she complied with the condition precedent.           The Hudsons
    contend that this requirement is an executory limitation separate and distinct from
    19
    the forfeiture clause and that Mary’s actions resulted in its failure. They argue
    that Mary is therefore divested of her inheritance.
    In her reply, Mary points out that the condition precedent language is form
    language included in many forfeiture clauses, whether as opening statements or
    concluding statements. 20 The language merely repeats the testator’s intent to
    condition bequests on compliance with the forfeiture clause. A forfeiture clause
    conditions a bequest on a beneficiary not disrupting the will or trust. 21
    We construe the condition precedent language located within the forfeiture
    clause to be consistent with the forfeiture clause as a whole. 22 Thus, based on
    the same reasoning guiding our decision that the forfeiture clause was not
    triggered, we hold that as a matter of law, the condition precedent language
    within the forfeiture clause was not triggered by Mary’s challenges to her brothers
    as co-trustees and co-executors. Her challenges go only to the alleged conduct
    and the results of the alleged conduct of the Hudsons. She has an inherent right
    20
    See, e.g., 
    Lesikar, 237 S.W.3d at 370
    ; In re Estate of Schiwetz, 
    102 S.W.3d 355
    , 365 (Tex. App.—Corpus Christi 2003, pets. denied); Sheffield v.
    Scott, 
    662 S.W.2d 674
    , 675 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d
    n.r.e.); Dulak v. Dulak, 
    496 S.W.2d 776
    , 781 (Tex. App.—Austin 1973), rev’d in
    part on other grounds, 
    513 S.W.2d 205
    (Tex. 1974).
    21
    DiPortanova v. Monroe, 
    402 S.W.3d 711
    , 715 (Tex. App.—Houston [1st
    Dist.] 2012, no pet.); In re Estate of Hamill, 
    866 S.W.2d 339
    , 341 n.1 (Tex.
    App.—Amarillo 1993, no pet.).
    22
    See In re Estate of Tyner, 
    292 S.W.3d 179
    , 182 (Tex. App.—Tyler 2009,
    no pet.).
    20
    to challenge her brothers’ fiduciary conduct. The Hudsons have therefore failed
    to prove this summary judgment ground as a matter of law. We sustain Mary’s
    fifth issue and reject the Hudson’s sixth “[r]eply and [c]ross [p]oint.”
    E. Mary Has Not Lost Standing by Virtue of Her Actions
    The Hudsons contend that Mary “lost all standing to bring her lawsuit, a
    result of disinheritance she has not contested on appeal,” and that she “raises no
    appeal point asserting some residual standing even after her disinheritance.”
    Our discussion of this contention is limited to the standing argument brought in
    the Hudsons’ second partial summary judgment motion based on the forfeiture
    clause and the trial court’s ruling thereon. We do not address the Hudsons’
    summary judgment motion based on other standing arguments (or, for that
    matter, its summary judgment motion based on limitations grounds) that the trial
    court has not yet ruled on.
    While Mary did not raise a specific issue on standing, she challenged the
    summary judgment against her and recognized its effect on her standing. Mary
    noted the Hudsons’ standing ground in her statement of facts, and in her
    analysis, she stated,
    All of Defendants’ Grounds for Summary Judgment as listed above
    are based on the same argument—that Mary T violated the in
    terrorem clause in her mother’s will and as a result, is no longer a
    beneficiary with standing to pursue her claims. Mary T’s arguments
    below, therefore, respond to all of Defendants’ Grounds for
    Summary Judgment.
    21
    We have held that the Hudsons failed to prove the grounds on which they
    and the trial court based Mary’s disinheritance as a matter of law. Because
    neither the forfeiture clause nor the condition precedent language therein was
    triggered, any automatic disinheritance was void from its inception, and Mary
    remains a beneficiary with no interruption. She therefore had and has standing
    to continue her lawsuit. Even if Mary had not mentioned standing in her brief,
    standing cannot be waived. 23 We sustain Mary’s sixth issue, and we reject the
    Hudsons’ first “[r]eply and [c]ross [p]oint.”
    III. Conclusion
    Mary does not challenge the trial court’s judgment against her as to her
    claim that the Hudsons violated the forfeiture clause. That part of the trial court’s
    judgment stands. But having sustained Mary’s first, fifth, and sixth issues, which
    are dispositive, we reverse the remainder of the trial court’s judgment and
    remand this case to the trial court for proceedings consistent with this opinion.
    /s/ Lee Ann Dauphinot
    LEE ANN DAUPHINOT
    JUSTICE
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
    DELIVERED: August 20, 2015
    23
    Tex. Ass’n of Bus. v. Tex. Air Control Bd., 
    852 S.W.2d 440
    , 443–44 (Tex.
    1993).
    22