In In re Gregg, Kenneth Gregg, an elderly man with dementia, transferred property to his son Monte Gregg in 2023. No. 07-25-00035-CV, 2025 Tex. App. LEXIS 3805 (Tex. App.—Amarillo May 29, 2025, no pet.). In December 2023, Kenneth’s daughters filed for temporary guardianship of Kenneth, which was granted. In July 2024, Kenneth purportedly created the Kenneth Gregg Trust and named Monte as trustee, transferring his remaining property to the trust. Kenneth’s guardian filed a motion for return of equipment and proceeds, which was served on Monte individually but not as trustee. The trial court issued a return order against Monte “in all capacities,” including as trustee of the Kenneth Gregg Trust. Monte filed a petition for writ of mandamus regarding this order.
The court of appeals emphasized that suits seeking relief against a trust must be brought against the trustee in that capacity, with proper service, acceptance, or waiver of service. Failure to do so deprives the court of jurisdiction over the trust. Monte was served only in his individual capacity, not as trustee. The court of appeals held that the trial court lacked jurisdiction to enter orders against a trust unless the trustee is properly named as a party and served in that capacity. The court also held that orders entered without such jurisdiction are void, which are remedied by mandamus.
The case also addressed whether Kenneth Gregg, while under a temporary guardianship, retained the authority to create a trust and transfer property to it. The court found that under Texas Estates Code Section 1151.001, a ward retains all legal and civil rights except those specifically granted to the guardian by court order. Since the temporary guardianship order did not expressly prohibit Kenneth from creating a trust or transferring property, he retained that authority. The court stated:
It is undisputed that Kenneth was under a temporary guardianship at the time he purportedly created the Kenneth Gregg Trust and transferred his property to it. The Estates Code provides that “[a]n incapacitated person for whom a guardian is appointed retains all legal and civil rights and powers except those designated by court order as legal disabilities by virtue of having been specifically granted to the guardian.” This provision creates a presumption that a ward retains all powers not specifically granted to the guardian. Here, the temporary guardianship order in place at the time of Kenneth’s purported transfer of his property to the trust specifically states that Lucretia’s power over Kenneth’s estate “shall be limited to possessing assets of the Ward’s estate, spending of estate funds for the daily care of KENNETH GREGG, and protecting and preserving estate assets.” Nothing in the temporary guardianship order prohibited Kenneth from creating a trust or expressly granted the right to create a trust to the temporary guardian of the estate. Thus, we must presume that Kenneth retained the right to create the Kenneth Gregg Trust in July of 2024. Further, the temporary guardianship did not expressly prevent Kenneth from transferring any estate property and did not give Lucretia the exclusive right over all estate property. Since nothing in the record rebuts the presumption that Kenneth retained the authority to create a trust, we conclude that he retained that authority.
Id. The court noted that the authority to create a trust is distinct from the authority to fund it. The validity of the trust’s creation was at issue, not whether Kenneth had authority to fund the trust with property. The appellate court conditionally granted Monte’s petition for writ of mandamus and directed the trial court to vacate its return order, finding the order void as to the trust due to lack of jurisdiction.
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