Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, July 29, 2019

Article on Standing, Capacity, and Necessary Parties in Trust Litigation

CourtFrank N. Ikard, Jr & Adam Herron recently published an Article entitled, Standing, Capacity, and Necessary Parties in Trust Litigation, 11 Tex Tech Est Plan Com Prop LJ 255 (2019). Provided below is an introduction to the Article.

Standing and capacity are two issues that are constantly present in trust litigation. Because lawyers and courts often conflate the two, this paper seeks to clarify the confusion.

A plaintiff must have standing and capacity to bring a lawsuit. "A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy." 4 "Capacity concerns 'a party's personal right to come into court,' while standing concerns 'the question of whether a party has an enforceable right or interest.'"

Standing is a component of subject-matter jurisdiction. "In Texas, the standing doctrine requires that there be (1) 'a real controversy between the parties,' that (2) 'will be actually determined by the judicial declaration sought.'" The court in Austin Nursing Center, Inc. v. Lovato adds:

In addition to standing, a plaintiff must have the capacity to pursue a claim. For example, minors and incompetents are considered to be under a legal disability and are therefore unable to sue or be sued in their individual capacities; such persons are required to appear in court through a legal guardian, a "next friend," or a guardian ad litem. Similarly, a [trust] "is not a legal entity and may not properly sue or be sued as such." Although a minor, incompetent, or [trust] may have suffered an injury and thus have a justiciable interest in the controversy, these parties lack the legal authority to sue; the law therefore grants another party the capacity to sue on their behalf. Unlike standing, however, which may be raised at any time, a challenge to a party's capacity must be raised by a verified pleading in the trial court.

In short, standing is jurisdictional. To have standing, (1) a party must have suffered an injury, and (2) there must exist a real controversy that can be resolved by the judicial relief sought (i.e., there must be a justiciable controversy).

Because they are intertwined with capacity and standing in trust litigation, this paper will also discuss necessary parties to trust disputes, claims against third parties, and derivative claims.


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