As a general rule, all doubts are resolved against the trustee who fails to keep adequate records. See generally Loring and Rounds: A Trustee’s Handbook §6.2.9 [page 673 of the 2018 Edition], which section is reproduced in its entirety in the Appendix below. That having been said, in Kohlhausen v. Baxendale, No. 01-15-00901-CV, 2018 Tex. App. LEXIS 1828 (Tex. App.-Houston [1st Dist.] March 13, 2018), the executor of the estate of a deceased trustee who had “left behind scant records” successfully raised as a defense against allegations that the trustee had engaged in unauthorized acts of self-dealing the trust instrument’s exculpatory provisions: “Because the summary judgment evidence failed to raise an issue of material fact as to whether any of the …[trustee’s]…alleged acts or omissions forming the basis of the …[the plaintiff’s]…breach of fiduciary duty claims were taken in bad faith or gross negligence, …[the plaintiff]…failed to meet her burden of establishing the inapplicability of the exculpatory clause to such acts or omissions.”
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