Monday, January 12, 2009
In the case of In re Ashton, 266 S.W.3d 602 (Tex. App.—Dallas 2008, no pet. h.), the trial court awarded relief against a trust. The appellate court granted mandamus relief because neither the trust nor the trustee had been made a party to the action. A suit against a trust must be brought against the trustee, that is, the legal representative of the trust. Accordingly, for a judgment to be rendered against a trust, “its trustee must be properly before the trial court as a result of service, acceptance, or waiver of process, or an appearance. * * * Stated differently, for relief to be granted against a trust, the trust—through its trustee—must be made a party to the action.” Id. at 604. The fact that the trustee in his individual capacity was party to the lawsuit did not cure the defect.
Moral: When seeking relief against a trust, be certain to join the trustee in its representative capacity as a party to the action.